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2025 Supreme(Online)(Ker) 39838
IN THE HIGH COURT OF KERALA AT ERNAKULAM
JOBIN SEBASTIAN, J
BHASKARAN – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A NO. 903 OF 2014
For the Appellants/Petitioners: SRI.R.SUDHISH, SMT.M.MANJU
For the Respondents: SRI.ALEX.M.THOMBRA-SR.PUBLIC PROSECUTOR
Unexplained delay in producing evidence and lack of jurisdiction of the Preventive Officer led to the acquittal of the accused in an Abkari Act case.
Headnote:(A) Abkari Act - Section 8(2) - Possession of arrack - Accused found with 10 litres of arrack, convicted and sentenced by the trial court - Appeal against conviction - Delay in producing the sample before the court raises doubts about the integrity of evidence - Preventive Officer's actions deemed without jurisdiction, leading to acquittal. (Paras 5, 11, 12)
(B) Evidence - Hostility of independent witnesses in Abkari cases - While such hostility is common, reliance on official witnesses must be substantiated with procedural integrity. (Paras 9, 10)
Facts of the case:
The accused was charged with possession of arrack, with prosecution relying on the evidence of a Preventive Officer and documentary evidence. The independent witness turned hostile, raising concerns about the prosecution's case.
Findings of Court:
The unexplained delay in producing the sample and lack of jurisdiction in the Preventive Officer's actions led to the conclusion that the accused was entitled to acquittal.
Issues: The main issues were the procedural integrity of the evidence and jurisdiction of the Preventive Officer in the arrest and investigation.
Ratio Decidendi: The court held that failure to produce the sample promptly raises concerns about tampering and that the Preventive Officer acted beyond his jurisdiction, rendering the proceedings invalid.
Result: Appeal allowed; conviction and sentence set aside; accused acquitted.
| Table of Content |
|---|
| 1. facts of the case regarding possession of arrack. (Para 1 , 2 , 3 , 4) |
| 2. final decision leading to acquittal due to jurisdiction issues. (Para 5 , 12) |
| 3. arguments presented by both sides regarding the accused's innocence. (Para 6) |
| 4. court's observations on evidence and procedural integrity. (Para 8 , 9 , 10 , 11) |
JUDGMENT
The sole accused in S.C.No.692/2011, on the file of the Additional District & Sessions Court-IV, Kozhikode, has preferred this appeal challenging the judgment of conviction and order of sentence passed against him for the offence punishable under Section
8(2) of the Abkari Act .
2. The prosecution allegation in brief is that, on 14.11.2008, at 05.00 p.m., the accused was found in possession of 10 litres of arrack in a plastic can having a capacity of 10 litres, near the house of one Muringanath Prathapan, in Kannadipoyil-Kurumbayil road of Kinalur amsom, in contravention of the provisions of the Abkari Act , and thereby committed an offence punishable under Section 8 (2) of the .
3. Upon conclusion of the investigation, the final report was laid before the Judicial First Class Magistrate Court-II, Perambra. Being satisfied that the case is one exclusively triable by a Court of Session, the learned Magistrate, after complying with all legal formalities, committed the case to the Court of Session, Kozhikode, under Section 209 of Cr.PC. The learned Sessions Judge, having taken cognizance of the offence, made over the case to the Additional District & Sessions Court-IV, Kozhikode, for trial and disposal. On appearance of the accused before the trial court, the learned Additional Sessions Judge, after hearing both sides under Section 227 of Cr.P.C. and upon a perusal of the records, framed a written charge against the accused for an offence punishable under Section 8 (2) of the Abkari Act . When the charge was read over and explained to the accused, he pleaded not guilty and claimed to be tried.
4. The prosecution, in its bid to prove the charge levelled against the accused, has altogether examined five witnesses as PW1 to PW5, and marked Exts.P1 to P7. MO1 was exhibited and identified. After the completion of prosecution evidence, the accused was questioned under Section 313 of Cr.P.C. during which he denied all the incriminating materials brought out against him in evidence. On finding that the accused could not be acquitted under Section 232 of Cr.P.C., he was called upon to enter on his defence and adduce any evidence he may have in support thereof. But no evidence, whatsoever, was adduced from the side of the accused.
5. After trial, the accused was found guilty of the offence punishable under section 8(2) of the Abkari Act , and he was convicted and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1 Lakh. In default of payment of fine, the accused was ordered to undergo simple imprisonment for a further period of three months. Assailing the said judgment of conviction and the order of sentence passed, the present appeal has been preferred.
6. I heard learned counsel for the appellant and the learned Senior Public Prosecutor.
7. The learned counsel for the appellant submitted that the accused is innocent of the allegations levelled against him and that he was falsely implicated in this case. According to the counsel, the accused had no connection whatsoever with the contraband allegedly seized in this case, and he was implicated based on surmises and conjectures. The learned counsel urged that there is an unexplained delay of two days in producing the sample before the court and hence, chance of tampering cannot be ruled out in this case. Moreover, the learned counsel submitted that the Preventive Officer who detected the case was not a competent Abkari officer to register a case under Abkari Act and hence the entire proceedings in this case, including taking of cognizance and the trial, were vitiated and the accused is entitled to be acquitted. Per contra
