The appellants herein are the two accused in

S.C.387/2002 of the Court of Session, Thalassery. They

faced trial before the learned Additional Sessions

Judge (Adhoc-III), Thalassery under Section 55(a) of

the Kerala Abkari Act (the Act) on the allegation that

at about 8.30 p.m. on 16.8.1999, they were found

transporting huge quantity of arrack, contained in 4094

packets, allegedly imported from the State of Karnataka

for sale in Kerala. The offence was detected by the

Sub Inspector of Police, Panoor during his usual night

patrol at Ponniampalam. The huge quantity of arrack

was brought to Kerala, according to the prosecution, in

the Jeep No.KL-14/1477. During patrol, the Sub

Inspector intercepted the vehicle for inspection. The

prosecution would allege that under the guise of

showing the vehicle documents to the police, the driver

and the accompanying passenger came out of the vehicle,

and immediately they ran off and escaped. When the Sub

Inspector inspected the vehicle, he saw 4094 packets of

arrack contained in 11 bags. He seized the contraband

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articles, including the vehicle as per a mahazar, and

on the basis of this seizure, he registered a crime

against the two accused. Investigation was taken over

by the Sub Inspector of Police, Chokli as ordered by

the Superior Officer, and after major part of

investigation at his hands, it was taken over by the

Sub Inspector of Police, Panoor. He completed the

investigation, and submitted final report in court.

2.

The two accused appeared before the learned

trial Judge, and pleaded not guilty to the charge

framed against them. The prosecution examined four

witnesses, and proved Exts.P1 to P10 documents in the

trial court. The MO1 series properties were also

identified during trial. The two accused denied the

incriminating circumstances, and projected a defence of

total denial. Their contention is that no quantity of

arrack was in fact transported by them in the vehicle

No.KL-14/1477 as the prosecution would allege, and they

have nothing to do with the said vehicle. The accused

did not adduce any evidence in defence. On an

appreciation of the evidence, the trial court found

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both the accused guilty under Section 55(a) of the Act.

On conviction, they were sentenced to undergo rigorous

imprisonment for one year each, and to pay a fine of

Rs.1,00,000/- each. Aggrieved by the judgment of

conviction dated 25.11.2005, the two accused have come

up in appeal.

3.

On hearing both sides, and on a perusal of the

materials, I find some infirmities and illegalities in

this case, vitiating the prosecution. The benefit of

these infirmities must go to the accused by way of

acquittal. Of the four witnesses examined in the trial

court, PW1 is the Sub Inspector, who detected the

offence, and PW3 is the Sub Inspector of Police,

Chokli, who conducted major part of investigation. PW2

examined as independent witness turned hostile. PW4 is

the successor of PW1, who closed the investigation, and

submitted final report in court. The evidence given by

PW3 shows that the major part of investigation was

conducted by him. PW1 has given evidence regarding the

seizure of a vehicle, wherein he found 4094 packets of

arrack. His evidence is that he intercepted the

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vehicle during his patrol duty, and then the driver

stopped it. Under the pretext of showing the vehicle

documents, the driver and the accompanying passenger

came out, and immediately they ran off and escaped.

The FIR registered by PW1 does not give any indication

regarding the details, or the identification features

of the persons who ran off and escaped. Ext.P10 is

said to be the copy of the driving licence of the 1^st

accused. The prosecution case is that PW1 seized this

copy along with the contraband articles. But, the FIR

or the mahazar does not show that any such document was

seized by PW1. The FIR shows tha