J U D G M E N T

Appellant is the accused in S. C. No. 381/05 on the file of Additional Sessions Judge, Fast Track-I, Palakkad. The above case is charge sheeted by the Excise Range Office, Nenmara against the appellant alleging offence punishable under Section 8 of the Kerala Abkari Act.

2. The prosecution case is that, on 18.01.2001 at 8.00 p.m., the accused was found in possession of 5 liters of arrack in a can in his possession near an electric post near his house on the side of canal bund from Chulliar to Karimkulam in Kottayamkad Desom in Elavanchery Village in Chittur Taluk.

3. To substantiate the case, the prosecution examined PW1 and PW2. Exts. P1 to P6 are the exhibits marked on the side of the prosecution. MO1 and MO2 are the material objects.

4. On going through the evidence and documents, the trial court found that, the accused committed the offence under Section 8 of the Abkari Act. The appellant/accused was sentenced to undergo rigorous imprisonment for a period of one year and also to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused was directed to undergo rigorous imprisonment for a period of six months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed.

5. Heard the learned counsel for the appellant and the learned Public Prosecutor.

6. The learned counsel for the appellant submitted that, the conviction and sentence imposed on the appellant is unsustainable, for the simple reason that, the property list is not produced by the prosecution. Moreover, the learned counsel also submitted that, there is a delay of 12 days in producing the contraband articles before the Court. The prosecution has no explanation for the same. The learned counsel also submitted that, in Ext. P4 forwarding note, the person through whom the sample is forwarded is kept blank, that is fatal to the prosecution.

7. The learned Public Prosecutor supported the judgment.

The learned Public Prosecutor submitted that, there is oral and documentary evidence to prove the case against the appellant and there is nothing to interfere with the conviction and sentence imposed by the lower court.

8. The point for consideration in this appeal is whether the appellant/accused committed the offence under Section 8 of the Abkari Act.

9. Admittedly, the property list is not marked in this case.

The importance of property list in Abkari case is considered by this Court on earlier occasion. The Court will gather the date on which the properties reached the Court after seizure, through the property list. If the property list is not marked in this case, that is fatal to the prosecution. Once a contraband article is seized from the possession of the accused, it should be produced before the Court concerned forthwith. When the property is produced before the Court, it will be produced along with a property list. The trial Court and the appellate Court can verify the date on which the property reached the Court only by going through the endorsement in the property list. Simply because the witnesses deposed that the property reached the Court on such and such date, it cannot be believed safely. When there are documents to prove that the property is reached the Court on a particular date and the same is not marked by the prosecution, according to me an adverse inference can be taken under Section 114(g) of the Evidence Act, against the prosecution. Simply because the witnesses deposed that, the property reached the Court on such and such date, the same is not acceptable unless the property list is produced and marked in cases like this. Admittedly, the property list is not marked in this case. Therefore, this Court is handicapped in ascertaining the date on which the property is produced before the Court. It is now settled by a catena of decision of this Court, that the property should be produced before the Court forthwith and if the same is not produced, that is fatal to the prosecution. To find out when exactly the property reach