MOHANAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE challenge is against the conviction and sentence imposed vide judgment dated 21.11.1997 in S.C.No.194/1997 on the files of the Sessions Court, Kottayam. The appellant, who is arrayed as the second accused being the licensee of a toddy shop, faced trial along with the first accused, who allegedly the employee of the said toddy shop, for the offences punishable under Sections 8(1) and (2) of the Kerala Abkari Act. But the appellant alone was convicted and punished under the above provision, whereas the first accused is acquitted. Hence, this appeal is at the instance of the second accused in the above Sessions Case.

(2.) THOUGH this appeal pertains to the year 2007, this Court, by order dated 25.02.2010 in Crl. M.A. No. 1894/2010 preferred by the appellant, directed the Registry of this Court to post the appeal for hearing, as the appellant is suffering from serious ailment namely, locally advanced Carcinoma Tongue Post Chemo and thus this appeal has come up for hearing out of turn.

(3.) ACCORDING to the prosecution, in pursuance of the general direction issued from the Excise Department, PW3 conducted a raid in Toddy shop No.51/2006-2007 at Kulathoormuzhi on 19.10.2006 at about 6.15 p.m. and seized the illicit arrack and spirit mentioned above, which were kept beneath a desk in the kitchen room of the toddy shop and also found Rs.3,710/- in the drawer of the desk. According to the prosecution, samples were drawn from the contraband article detected and the remaining substance were seized. It is the further case of the prosecution that PW3 obtained the signatures of the witnesses and that of the first accused, who were present in the toddy shop at the time of search. Thus, the specific allegation of the prosecution is that the first accused was the then Manager, engaged in the sale of toddy in the said toddy shop of which the appellant is the licensee and he was found in possession of the contraband article. On the basis of the above allegations, Crime.No.15/2006 was registered in the Excise Range, Changanacherry for the offences punishable under Section 8(1) and (2) and Section 55(a) and (i) of the Kerala Abkari Act, and on completing the investigation, a report was filed in the Judicial First Class Magistrate Court, Changanacherry, and the case was taken as C.P. No.16/2007 and by order dated 28.7.2007 therein, the learned Magistrate committed the case to the Sessions Court wherein S.C.No.194/2007 was instituted and subsequently the case was made over to the trial court for disposal.