JUDGMENT

Dated this the 17th day of March 2021 The accused in S.C.No.116/2005 on the file of the Additional Sessions Court, Fast Track Court 1, Palakkad has filed this appeal being aggrieved by the judgment dated 01.12.2006, whereby he has been found guilty of offence under Section 8 of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of ₹1,00,000/- and in default of payment of fine to undergo rigorous imprisonment for a further period of 3 months.

2. The case of the prosecution is that at about

1.00 a.m. on 05.03.2003, the accused was found in possession of 5 litres of arrack in a can in the verandha of Vishnu Stationary Shop at Kumbidi. Before the trial court, the prosecution examined the Detecting Officer as PW1 and the Police Constable who accompanied the Detecting Officer at the time of detection of the offence as PW2. Two other independent witnesses have also been examined. The Investigating Officer is not seen to have examined. Exts.P1 to P6 were marked on the side of the prosecution. But it is seen that the property list is not seen produced and marked. On the side of the defence, Exts.D1 & D2 which are copies of the FIR and seizure mahazar issued to the accused have been marked in evidence. On the basis of the evidence on record, the court below found the appellant guilty of the offence and imposed the sentence referred above.

3. Heard Sri.P.K.Mohanan (Palakkad) on behalf of the appellant and Smt.Sylaja, learned Public Prosecutor on behalf of the State.

4. The counsel for the appellant contends that there are several discrepancies in the prosecution case. The counsel contends that Ext.P2, which is the arrest memo proving the arrest of the appellant, does not anywhere indicate the reason for the arrest and the offence for which he has been arrested. It is pointed out that in Ext.P3 FIR, it is stated that 180 ml was taken as sample while in the copy which has been issued to the accused which is produced as Ext.D1, the said quantity is mentioned as 175 ml. Another aspect pointed out is that Ext.P1 seizure mahazar contains a sample seal on the side of the signature of the witnesses while in Ext.D2, which is a copy of the seizure mahazar which was issued to the accused, no such seal is seen. It is pointed out that since the property list has not been produced and marked, there is nothing to show the production of the thondi articles before the court, the receipt of the same in the court and the making of necessary entries in the thondi register, etc. The forwarding note is also seen to have been submitted only on 10.03.2003, 5 days after the seizure of the thondi articles. Even though the document shows that it has been prepared on 10.03.2003, the same is seen to have been counter signed by the Magistrate only on 09.04.2003. It appears from the covering letter, which has been produced along with the forwarding note that the materials were dispatched on 09.04.2003. It is pointed out that there is absolutely no evidence explaining all these delays and the manner in which the thondi articles were kept in safe custody during the interregnum.

5. I find considerable force in the contentions raised by the counsel for the appellant. On verification of the records, I find that no property list is seen to have been prepared and produced along with the thondi articles before the court. As such there is no evidence forthcoming to show the production of the thondi articles. The only document to show the factum of seizure is hence the seizure mahazar. A property list dated 26.10.2006 is seen on the file, though not produced. It would appear that this was prepared and produced before the Court at the time of trial. The said document has not been marked in evidence. However, this document would further indicate that the property list was not submitted earlier. In the absence of the property list it is not possible to know how the seized articles were kept in safe custody, who kept it under