C.V.RAJAPPAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The criminal revision petition is filed aggrieved by the conviction and sentence imposed on the petitioner by the Assistant Sessions Court, Thiruvalla in S.C. No. 45 of 2001, as affirmed by the Additional District and Sessions (Ad hoc Fast Track) Court-III Pathanamthitta in Crl. A. No. 180 of 2004. The trial Court Convicted the petitioner for the offence under Section 8(1), punishable under Section 8(2) of the Abkari Act and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1 lakh with default sentence of simple imprisonment for a period of 6 months. The appellate court dismissed the appeal filed by the petitioner, but altered the conviction to one under Section 58 of the Abkari Act, instead of sections 8(1) and (2), while maintaining the sentence imposed by the trial Court. The prosecution allegation, based on which charge was framed and the petitioner prosecuted are as under; While PW1 was doing patrol duty on 3.6.1999, he got reliable information that one Rajappan (the petitioner) was indulging in sale of arrack from his house. Thereupon, the patrol party proceeded to the petitioner's house and on searching the house found 13 bottles hidden inside the kitchen, of which 11 bottles were of 1.5 ltrs and 2 bottles of 750 ml capacity. The contents of the bottle were examined by smelling and tasting and was identified to be arrack. The petitioner, who was present in the house was arrested and the contraband seized. From among the 13 bottles, sample was drawn from one bottle of 750 ML capacity. Thereafter the sample bottle as well as the 13 bottles containing the contraband were sealed in the presence of the petitioner and two independent witnesses. The requisite formalities like, filing of occurrence report, production of accused and seized articles along with sample before the jurisdictional Magistrate were complied without delay. Further investigation of the case was conducted by PW 5, who after completion of investigation filed charge sheet against the petitioner for commission of the offence under Section 8(1) of the Abkari Act.

(2.) In order to prove its case, the prosecution examined P Ws 1 to 6 and marked Exhibits P1 to P11, P11 a and P12 and MOs 1 to 13. During his questioning under Section 313 Cr.P.C, petitioner denied the incriminating circumstances brought out against him and further stated that he was falsely implicated in the case and was actually arrested from his shop.

(3.) The trial Court after appreciation of evidence found that the prosecution had succeeded in proving the guilt of the petitioner. The contentions raised on behalf of the petitioner regarding there being no independent witness for the search and seizure since PWs 3 and 4, who were sought to be examined as witnesses to the search and seizure, did not support the prosecution case, were discarded. So also, the contention raised on the discrepancies in the oral testimony of PW 1, was found to be of no avail. The appellate Court, after consideration of the contentions urged on behalf of the petitioner, found them to be unsustainable and rejected the appeal. As far as the conviction under Section 8(1) and (2) of the Abkari Act is concerned, the appellate Court found that since, on analysis, the sample was found to be spirit, the conviction should have been under Section 58 of the Kerala Abkari Act and not under Sections 8(1) and (2), which are provision for charging and punishing for possession and sale of arrack. Consequently, while upholding the finding of guilt and the sentence imposed, the appellate Court altered the conviction to the offence under Section 58 of the Abkari Act.