Procedural lapses in arrest and evidence certification render prosecution claims insufficient for conviction under liquor laws.

J U D G M E N T

In this appeal filed under Section 374(2) Cr.P.C., the appellant who is the accused in S.C.No.1070/2012 on the file of the Court of Session, Kasaragod challenges the conviction entered and sentence passed against him for the offence punishable under Section

8(2) of the Abkari Act , 1 of 1077 (the Act).

2. The prosecution case is that on 27/12/2011 at about

06:45 p.m. the accused was found in possession of 15 bottles of 'John Bull Whisky' manufactured in Karnataka with each bottle having a capacity of 180ml. The accused was also found in possession of 21 plastic bottles of 'Honey Guide Brandy', each bottle having a capacity of 90ml each, which liquor was manufactured in Goa. The accused was found in possession of the aforesaid quantity of Indian made foreign liquor for sale. The place of occurrence is the courtyard of his house bearing no.XIII/232(VI/331) of Delampady Grama Panchayath, Ponoram, Adhur village. Hence, the accused as per the final report/charge sheet was alleged to have committed the offence punishable under Section 55(a) of the Act.

3. Crime no.477/2011, Adhur police station, that is, Ext.P4 FIR was registered by PW1, the Sub Inspector of Police, Adhur police station, the detecting officer in this case. PW1 had conducted the initial investigation. Thereafter, the investigation was taken over by CW9 who completed the investigation and submitted the final report/charge sheet before the jurisdictional magistrate alleging the commission of the offence punishable under the aforementioned Section by the accused.

4. On appearance of the accused, the jurisdictional magistrate after complying with all the necessary formalities contemplated under Section 209 Cr.P.C., committed the case to the Court of Session, Kasaragod. The case was taken on file as S.C.No.1070/2012 and thereafter made over to the Additional District and Sessions Judge-III, Kasaragod for trial and disposal. The trial court on 03/03/2014, framed a charge for the offence punishable under Section 8 (1) read with Section 8 (2) of the Act, which was read over and explained to the accused to which he pleaded not guilty.

5. On behalf of the prosecution, PW1 to PW5 were examined and Exts.P1 to P11 were got marked in support of the case. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence.

6. As the trial court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence and adduce evidence in support thereof. No oral or documentary evidence was adduced by the accused.

7. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found the accused guilty of the offence contemplated under Section 8 (1) of the Act and hence sentenced him to rigorous imprisonment for one year and to a fine of ₹1,00,000/- and in default of payment of fine to rigorous imprisonment for a period of three months for the the offence punishable under Section 8 (2) of the Act.

Set off under Section 428 Cr.P.C. has been allowed. Aggrieved, the accused has come up in appeal.

8. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the accused/appellant by the trial court are sustainable or not.

9. Heard both sides.

10. The learned counsel for the accused/appellant advanced three main arguments against the prosecution case- (i) no arrest intimation had been prep