Unexplained delays in the production of evidence and investigation undermine the prosecution's case, leading to the acquittal of the accused.

JUDGMENT

The appellant was convicted by the Additional Sessions Court (Ad hoc)-I, Thrissur, for the offence under Section 58 of the Abkari Act . He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- (Rupees one lakh only) and, in default of payment of fine, to undergo simple imprisonment for two months. Challenging the conviction and sentence passed by the court below, the appellant has preferred this appeal.

2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent.

CRA 2030/2008 2

3. The prosecution case is briefly stated as follows:

PW1, the Excise Inspector attached to the Excise Circle Office, Irinjalakuda, and his party were on patrol at about 8 p.m. on 21.8.2004. While so, the appellant was seen at Poolani in Meloor Village carrying a 10 litre black jerrycan in his right hand. On examining that jerrycan, about 8 litres of arrack was found in it. Since the appellant had committed an offence under the Abkari Act , he was arrested by PW1 then and there preparing an Arrest Memo. An arrest intimation was also issued to his relative. PW1 had drawn 300 ml. of arrack as sample in a 375 ml. bottle from the bulk contained in the jerrycan. The sample bottle was sealed by affixing the personal seal of PW1. The jerrycan containing bulk of arrack was also sealed. Both the sample and the jerrycan containing arrack were seized by PW1 under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW1 and his party returned with the appellant, CRA 2030/2008 3 contraband and the records and handed over them to PW5, the Excise Inspector, Excise Range Office, Chalakudy. PW5 registered Crime No. 43 of 2004 of that Range Office in respect of the occurrence. Ext.P6 is the Crime and Occurrence Report thus prepared by PW5. He had produced the appellant, properties and the records before the Judicial First Class Magistrate's Court, Chalakudy. The investigation of the case was conducted by PW4, the Excise Inspector, Excise Range Office, Chalakudy. He had gone to the place of occurrence and prepared Ext.P3 Scene Mahazar. He had also prepared Ext.P4 Location Sketch in respect of the place of occurrence. He had questioned the witnesses and recorded their statements. He had completed the investigation and submitted the Final Report before the court.

4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court CRA 2030/2008 4 of Session, Thrissur, and, from there, it was made over to the Additional Sessions Court (Ad hoc)-I, Thrissur. The court below framed a charge against the appellant alleging the offence under Section 58 of the Abkari Act . The appellant pleaded not guilty of the charge. The prosecution examined PWs. 1 to 6 and marked Exts.P1 to P6 and MO.I on their side. The appellant was examined under Section 313 of Cr.P.C. He denied all the incriminating circumstances shown against him. The defence had examined DW1 and marked Ext.D1 on its side. The court below, after considering the matter, found the appellant guilty of the offence under Section 58 of the and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him.

5. The appellant has raised various contentions challenging the conviction and sentence passed by the court below against him. It is the case of the prosecution that the CRA 2030/2008 5 appellant was found in possession of 8 litres of arrack in a jerrycan at about 8 p.m. on 21.8.2004 and PW1 arrested him then and there and the contraband was seized under Ext.P1 Seizure Mahazar in the presence of witnesses. PW5 had produced the appellant, contraband including sample and the records before the court. The List of Property was not marked in this case. There is no evidence as to whether PW5 had prepared a List of Property for producing the properties before the court. A List of Property is not available among the records. PW5 admitt