A conviction under the Abkari Act can be overturned when discrepancies in evidence and procedures lead to reasonable doubt about the prosecution's case.

J U D G M E N T

The appellant was convicted and sentenced to undergo simple imprisonment for one month and to pay a fine of Rs.25,000/- for the offence under Section 8 (1) r/w 8(2) of the Abkari Act by the Additional Sessions Judge (Adhoc)-I, Manjeri Division as per judgment dated

22.03.2011.

2. The appellant is challenging the legality of the findings entered and the sentence imposed by the trial court. Since the fine amount imposed by the trial court is below the statutory minimum as provided under Section 8 (2) of the Abkari Act , this Court registered the suo moto Criminal Revision Case as per order dated 08.03.2021.

3. As per the prosecution case, on 04.11.2008, at about 5.45 p.m., while the Excise Inspector, Kuttiippuram Range and party were on patrol duty, they found the accused in possession of one litre of arrack in a one litre bottle at kanhiramkad in Tirur Taluk.

4. When the accused appeared before the trial court and pleaded not guilty to the charge, PWs 1 to 6 were examined and Exhibits P1 to P6 and MO1 were marked from the side of the prosecution and no evidence adduced from the side of the defence.

5. After hearing both sides and analysing the evidence, the trial court found the accused guilty under Section 8 (1) of the Abkari Act and imposed a sentence as aforesaid.

6. Heard Sri. T.K. Saidalikutty, the learned counsel for the appellant and Sri. Alex M. Thombra, the learned Senior Public Prosecutor.

7. The learned counsel for the appellant argued that all the independent witnesses turned hostile to the prosecution and the occurrence witnesses who supported the prosecution are PWs 1 and 2 and their evidence does not tally with Exhibit P1 mahazar on material particulars and therefore, the accused is entitled for the benefit of reasonable doubt. It is also argued that PWs 1 and 2 have no case that the accused was arrested at the time of occurrence and there is no proper dock identification of the accused at the time of trial by PWs 1 and 2.

8. PW1 is the Excise Inspector who detected the offence and PW2 is the excise guard who accompanied PW1 at the time of occurrence. PWs 1 and 2 deposed before the court that while on patrol duty, they saw the accused coming with one litre plastic bottle and after detaining the accused and seizing the bottle, they took 200 ml. of arrack as sample in a 300 ml. bottle and affixed seal. But, a perusal of Exhibit P1 mahazar shows that 200 ml. of arrack was taken as sample in a 375 ml. bottle and there was no attempt on the part of the prosecution to clarify the position as to whether the sample was taken in a 375 ml. bottle as stated in Exhibit P1 or in a 300 ml. bottle as deposed by PWs 1 and 2. It is also pertinent to note that according to PW1, only one sample was taken in a 300 ml. bottle; but according to PW2, sample was taken in two bottles.

9. PWs 4 and 5 are the independent witnesses examined from the side of the prosecution; but, they turned hostile to the prosecution stating that they have not witnessed the occurrence and that the accused is not known to them.

10. PW3 excise guard only deposed that he produced the properties before the court on 05.11.2008. Exhibit P2 crime and occurrence report and P3 property list reached the court only at 3.15 p.m. on 05.11.2008 and there is no explanation for the delay.

11. The evidence of PW6, Excise Inspector, shows that he conducted the investigation of this case from 08.1.2010 onwards and filed final report after completing the investigation. Exhibit P4 is the copy of the forwarding note and Exhibit P6 is the report of the chemical examiner. Exhibit P6, chemical analysis report dated 11.1.20