VINOD, Vs. STATE OF KERALA,

JUDGEMENT

(1.) This appeal is preferred under Section 374(2) of the Criminal Procedure Code, hereinafter referred to as 'the Code', challenging the correctness of the judgment of the Additional Sessions Court, Thrissur dated 27.11.2007 in Sessions Case No.139/2006. That case had arisen from the final report laid by the Excise Inspector, Wadakkanchery in Crime No.7/2004 of Wadakkanchery Excise Range. The precise allegation against the appellant is that on 05.02.2004 at 6.P.M., while the Excise Inspector and party were conducting patrol duty through the Harijan colony road in Thekkumkara village in Talappilly taluk, when they were moving from east to west, a person was found emerging to the road from the northern bylane carrying a 10 litre can; seeing the Excise party he ran towards north, after abandoning the can on the road. Even though two Excise officials had chased him, he could not be apprehended. When the can was opened in the presence of independent witnesses, it contained about 8 litres of liquid which was tested in the presence of witnesses and found to be illicit arrack. Thus the contraband was seized under a mahazar, the party returned to the office and registered Crime No.7/2004 of Excise Range, Wadakkanchery. After investigation, the charge sheet was laid before the Judicial First Class Magistrate Court, Wadakkanchery where the case was taken on file as C.P. No. 84/2005. The learned Magistrate after completing the procedural formalities, committed the case to the Sessions Court, Thrissur from where the case was made over to the trial court.

(2.) It is stated that the accused was later arrested and then released on bail. When appeared pursuant to the summons before the trial court, after hearing counsel on both sides, the charge was framed, read over and explained, he pleaded not guilty. He was being defended by a counsel of his choice.

(3.) The prosecution examined six witnesses to prove the allegations. Exts.P1 to P9 were also marked. After closing the evidence, when questioned under Section 313(1)(b) of the Code, the appellant denied the incriminating materials tendered against him. He maintained that he has no connection whatsoever with the contraband. As the learned Judge found it not a fit case to give an acquittal under Section 232 of the Code, he was called upon to enter on his evidence in defence. But there was no oral evidence for him. A document produced by the prosecution as a sketch by mistake was marked as Ext.D1 for the defence. After hearing counsel on both sides, repelling the plea of innocence, the learned Additional Sessions Judge found the appellant guilty of offence under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for three years and to pay fine of Rs.1,00,000/-, in default to undergo simple imprisonment for one more year. That conviction and sentence are the subject matter of this appeal.