The court emphasized the importance of witness credibility and procedural adherence in upholding a conviction under the Abkari Act.

JUDGMENT

This appeal is preferred against the conviction and sentence dated 14.3.2007 made in S.C.No.19/2004 on the file of the Additional Sessions Court (Adhoc-I), Kalpetta. The conviction is under Section 55 (a) of the Abkari Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1 lakh with default rigorous imprisonment for three months.

2. The facts necessary for consideration of this appeal is as follows: On 6.2.2003 at about 6 p.m, the appellant/accused was found in possession of 10 litres of illicit arrack in a kannas on the side of Anadikkappu-Valathur public road, in front of the house of the appellant herein, and thereby allegedly committed the above said offence. Final report was filed before the court. PW1 to PW5 were examined and Exts.P1to P7 were marked. MO1 and MO2 were marked. DW1 and DW2 were also marked and Ext.D1 was also marked.

3. After appreciating the evidence, the court below convicted the accused and sentenced as stated above and aggrieved by the above conviction and sentence, this appeal preferred.

4. When the appeal came up for hearing, the learned senior counsel appearing for the appellant submitted before me that in this case, the prosecution failed to prove the case beyond reasonable doubt. It is the submission made before me that regarding the seizure/detection as well as the facts brought out during cross examination will show that the case now put forward before the court is not depicting a truthful picture. In support of the said submission, it is submitted before me that when PW1 was cross examined, it was brought out that, on the day, excise party proceeded on a phone message received from Collectorate. Thereafter, the case now put forward is that the appellant herein was arrested from a place in front of his house. A specific question was put whether a search memo was prepared, the categoric answer by PW1 was that 'no' and it can be further seen that as per the prosecution case, when the patrolling party reached in front of the house of the appellant, he was seen therein as if to be arrested by the Excise officials with a kannas of arrack. It is also the submission that the evidence now tendered before this Court has to be appreciated on the basis of the seizure mahasar wherein the entries are now disowned by the witnesses. In the seizure mahazar itself, it is seen stated that PW1 and the party moved along with the “Circle party”. But now the case presented before the court is that there was only a preventive officer attached to the Circle Inspector of Excise in the party of the PW1 herein and it is also brought out in evidence that he has not stated as per Ext.D1 to the Investigating officer. Ext.D1. i.e., while recording the statement of the witnesses by the investigating officer, then also, his stand was that he did patrol duty along with the Excise Circle Party. The submission of the learned Senior Counsel is that in appreciating the evidence now before the Court, Ext.D1 should be given due consideration. When the prosecution got a case that he conducted patrol duty, along with circle party, deviating from the same, deposed before the Court that, he alone with his own party with one preventive officer of Circle office was conducting the patrol and further there is an admission to the effect that he proceeded after getting a message from the Collectorate, then the version now presented before the Court that the appellant herein was arrested from a place in front of the house can be considered only as a falsehood. It is further submitted that on the background of this aspect, the evidence of DW1 and DW2 has to be appreciated. DW2 is none other than the employer of the appellant who deposed before the Court that he is the employer as well as on that day appellant worked with him. DW1 is none other than the wife of the appellant who also deposed that on that day, no such incident took place. But when appellant came back in the night, he was summoned to the e