JUDGMENT

Dated this the 23rd day of February, 2021 Appellant challenges the conviction and sentence imposed on him by judgment dated 18.10.2008 in S.C. No.241 of 2004 on the files of the Additional Sessions Judge, Adhoc-III, Thalassery. By the impugned judgment, the accused was found guilty for the offence under Section 8(2) of the Abkari Act and was sentenced to undergo rigorous imprisonment for a period of 1 year and to pay a fine of Rs.1,00,000/- and in default of payment of fine to undergo simple imprisonment for one month.

2. The prosecution case was that on 30.12.1999 at 5.15 a.m., the accused was found possessing five litres of illicit arrack and after seizure of the contraband and arrest of the accused by PW1, a crime was registered by PW4, Excise Inspector, and after investigation by PW5, final report was filed arraying the accused for having committed the offence under Sections 8(1) and 55(a) of the Abkari Act. The learned Magistrate on noticing that the case was one exclusively triable by court of sessions, committed the case for trial to the Sessions Court, Thalassery.

3. In order to prove the prosecution case, PW1 to PW5 were examined and Exts.P1 to Ext.P7 were marked, apart from MO1.

4. After analysing the evidence adduced in the case, learned Sessions Judge found the accused guilty and sentenced him to imprisonment and fine, as mentioned above.

5. I have heard Adv.Shyna P.A., on behalf of Adv.C.P.Peethambaran, learned counsel for the appellant as well as Sri.P.K.Babu, learned Senior Public Prosecutor.

6. Learned counsel for the appellant submitted that the prosecution had failed to prove the case beyond reasonable doubt. In support of the said submission, it was argued that though the alleged contraband was detected and seized at 5.15 a.m. on 30.12.1999, Ext.P5 reveals that the same was produced before the court only on 4.1.2000. PW4, in his evidence, has not explained this long delay of 5 days. Relying upon the decision in Ravi v. State of Kerala (2011 (3) KLT 353), learned counsel canvassed that possibility of tampering with the contraband cannot be ousted and in such cases benefit of doubt ought to be granted to the accused. It was further argued that the independent witnesses adduced by the prosecution turned hostile and other than the official witnesses, none was available to prove the prosecution case, which also creates doubt on the prosecution version. The learned counsel further submitted that it is evident from the deposition of PW4 that the label on MO1 when marked in evidence before court was seen missing, which certainly creates a doubt on the prosecution case. 7. Controverting the contentions raised, the learned Senior Public Prosecutor submitted that the delay of 5 days is not a crucial delay so as to warrant interference by this Court. The attention of this Court was invited by the learned Public Prosecutor to the deposition of PW4 wherein he had stated that the contraband was retained by him till 4.1.2000, which certainly is a sufficient explanation. He also argued that even though the independent witnesses had turned hostile, the same will not erode the sanctity of the prosecution case since the other witnesses have convincingly spoken in time with the prosecution case. The absence of a defence of any ulterior motives on the official witnesses to frame a false case against the accused was also pointed out as a factor supporting the prosecution case. It was also submitted that absence of the label on MO1 at the time of marking in evidence is not detrimental since the label was present when MO1 was produced in court.

8. I have considered the rival contentions and have perused the records. I have also gone through the evidence adduced.

9. It is seen that the contraband was seized on 30.12.1999 at 5.15 a.m.. However, the property list was prepared only on 31.12.1999. Curiously there is no explanation of any nature given by any of the prosecution witnesses for this delay from 30.12.1999 till 31.12.1999 in