Decided on June 23,2017

Sukumaran, S/O Karunakaran Appellant


P.Ubaid, J. - (1.) The appellants herein are husband and wife. They faced prosecution in S.C.No.338 of 2009 of the Court of Session, Pathanamthitta under Sections 55(a) and 8(2) of the Kerala Abkari Act ("the Act") on the allegation that at about 5.35 p.m. on 19.06.2007 when the police party led by the Sub Inspector of Police, Pathanamthitta conducted a search at their house, they were found possessing 35 litres of spirit in a plastic can, and also 9 litres of arrack in another plastic can concealed at the kitchen of the house. The second accused (wife) was arrested on the spot, and the contraband articles were seized as per a mahazar. As the first accused (husband) had been away at that time, he could not be arrested on the spot. On the basis of the seizure of spirit and arrack, the police registered a crime against the husband and wife. After investigation, the police submitted final report before the Judicial First Class Magistrate Court, Thiruvalla. On committal, the case came up before the Court of Session, from where it was made over to the learned Additional Sessions Judge, Adhoc-III, Pathanamthitta for trial and disposal.
(2.) The two accused appeared before the trial court, and pleaded not guilty to the charge framed against them under Sections 55(a) and 8(2) of the Act. The prosecution examined seven witnesses in the trial court, and proved Exts.P1 to P13 documents. The MO1 and MO2 properties were also identified during trial. When examined under Section 313 Cr.P.C., the two accused denied the incriminating circumstances, and projected a defence that nothing was in fact seized from their house as the prosecution would allege. The accused did not adduce any evidence in defence. On an appreciation of the evidence, the trial court found the accused not guilty under Section 8 (2) of the Act for the reason that the liquid contained in the black plastic can of 10 litres was also identified as spirit on analysis. Accordingly, the two accused were acquitted of the said offence under Section 8(2) of the Abkari Act. However, they were found guilty under Section 55(a) of the Act. On conviction, they were sentenced to undergo rigorous imprisonment for five years each, and to pay a fine of Rs.1,00,000/- (Rupees One lakh only) each by judgment dated 16.06.2011. Aggrieved by the judgment of conviction, the two accused have come up in appeal.
(3.) On hearing both sides, and on a perusal of the materials, I find that as regards the allegation under Section 8(2) of the Act, the two appellants were rightly acquitted. But there is clear evidence to prove that the first appellant had possessed and concealed 35 litres of spirit at his house as the prosecution would allege. PW7 is the Sub Inspector who detected the offence, and PW3 is the Police Constable who assisted the Sub Inspector in the process of detection. The Ext.P1 search list prepared by the Sub Inspector at the spot of detection contains all the details of the search made by him, and of the contraband articles seized by him. PW3 has corroborated PW1 on all material particulars. Ofcourse, it is true that during trial it could be noted that the MO2 black plastic can of 10 litres did not contain any liquid. According to the prosecution, the liquid contained in the MO1 plastic can of 35 litres is spirit, and the liquid contained in the MO2 plastic can of 10 litres is arrack. PW7 had collected two samples each from the cans. All the four sample bottles were sent for analysis. On analysis at the laboratory, the liquid in all the four bottles was identified as spirit. This means that the liquid contained in the MO2 plastic can also is spirit, and not arrack. That is why the trial court found the accused not guilty under Section 8(2) of the Act. Anyway, by the time the case came up for trial everything in the MO2 plastic can was lost. No quantity of any sort of liquid could be found therein during trial. But there is full quantity of liquid in the MO1 plastic can of 35 litres capacity. The Ext.P13 certificate of analysis shows that the liquid was identified as spirit on analysis.;

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