The court established that improper jurisdiction and flaws in evidence gathering invalidate a conviction under the Abkari Act.

JUDGMENT

The sole accused in S.C.No.412/2005, on the file of the Additional Sessions Court (ADHOC)-I, Kalpetta, has preferred this appeal challenging the judgment of conviction and order of sentence passed against him for the offence punishable under Section 8 (2) r/w 8(1) of the Abkari Act .

2. The prosecution allegation in brief is that, on

21.11.2004, near the tea shed of the Harisons Malayalam Tea Estate, the accused was found in possession of 3 liters of arrack in a plastic jerry can having a capacity of 5 litres, for the purpose of sale in contravention of the provisions of the Abkari Act , and thereby committed an offence punishable under Section

8(2) r/w 8(1) of the Abkari Act .

3. Upon conclusion of the investigation, the final report was laid before the Chief Judicial Magistrate Court, Kalpetta. Being satisfied that the case is one exclusively triable by a Court of Session, the learned Chief Judicial Magistrate, after complying with all legal formalities, committed the case to the Court of Session, Kalpetta, under Section 209 of Cr.PC. The learned Sessions Judge, having taken cognizance of the offence, made over the case to the Additional Sessions Court (ADHOC)-I, Kalpetta, 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) r/w 8(1) 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 six witnesses as PW1 to PW6, 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) r/w 8(1) of the Abkari Act , and he was convicted and sentenced to undergo simple imprisonment for two years and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused was ordered to undergo simple imprisonment for a further period of one year. 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. It is urged that there is absolutely no material to show that the sample of the arrack that got analyzed in the laboratory is the very same sample drawn from the contraband seized in this case. It is pointed out that, in the Mahazar, the sample seal or specimen impression of the seal allegedly used is nowhere affixed. In short, the crux of the argument of the learned counsel for the appellants is that there is patent flaw in the manner in which the seizure and sampling procedures were carried out in this case rende