VIJAYAN,S/O GEORGE Vs. STATE OF KERALA,

JUDGEMENT

(1.) Appellant is the convict in S.C.No.676/2001 on the files of the Additional Sessions Court for the trial of Abkari Act Cases, Neyyattinkara, who faced trial for offence punishable under Section 58 of the Abkari Act. The precise allegation against the appellant is that on 06.10.1998 at 11.30 AM the CW1 Excise Preventive Officer and party found him moving through the Udiyankulangara-Vattavila road, in Chenkal village and desom in Neyyattinkara taluk, carrying about 2 litres of arrack in a jerrycan. Seeing the Excise party the appellant tried to make a retreat, he was suddenly intercepted, content of the can was tested by smelling and tasting, after making sure in the presence of independent witnesses that it was illicit arrack. The contraband was seized under a mahazar, he was arrested and produced before the Excise Inspector, following which Crime No.43/98 of Excise Range, Amaravila was registered. It is further stated that he was produced before the court on the same day along with the contraband and was remanded to judicial custody. On conclusion of investigation, a charge sheet was laid alleging offence punishable under Section 8(1) of the Abkari Act before the Judicial First Class Magistrate-II, Neyyattinkara. After completing the procedural formalities, the case was committed to the Sessions Court, Thiruvananthapuram from where it was made over to the trial court.

(2.) The appellant was defended by a counsel of his choice. After hearing counsel on both sides, when the charge alleging offence punishable under Section 58 of the Abkari Act was read over and explained in Malayalam, he pleaded not guilty. He was on bail.

(3.) On the side of the prosecution, seven witnesses were examined as PWs 1 to 7. Exts.P1 to P9 were also marked. The material object was identified and marked as MO1. On completion of prosecution evidence, when examined under Section 313(1)(b) Cr.P.C., he denied the incriminating evidence and reiterated his innocence. As it was not a case to be acquitted under Section 232 Cr.P.C., the court called upon him to enter on his evidence in defence. There was no evidence for him. After hearing counsel on both sides, by the impugned judgment, the learned Sessions Judge found him guilty of offence punishable under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1 lakh, in default, to undergo rigorous imprisonment for three months. That finding is now called in question under Section 374 of the Cr.P.C.