VASU Vs. STATE

JUDGEMENT

(1.) This is an appeal preferred under Section 374 (2) of the Criminal Procedure Code challenging the legality and correctness of the finding of conviction arrived at against the 2nd accused in S.C. 626 of 2004 of the Additional Sessions Court (Ad-hoc II), Kasaragod. That case was taken on file on the basis of the final report laid in Crime and Occurrence Report No. 64/99 of the Excise Range Office, Kasaragod which was registered on 29.12.1999 alleging offence punishable under Sections 55(a) and 64A of the Abkari Act. The allegation in brief is that on 29.12.1999 at 09.30 a.m., while the Excise Inspector and party were engaged in checking vehicles on the Cherkala - Bediadka State Highway, at Chedikkanam they intercepted auto rickshaw KL-14-B- 1796 driven by the 1st accused and travelled by the 2 nd accused on the rear seat; on stopping the vehicle, both the driver and the passenger tried to run away; but they were stopped and when the vehicle was examined, two bags were found placed on the platform of the auto rickshaw, each containing 500 packets of liquid. When three such packets were opened and verified in the presence of other members of the Excise party and independent witnesses, they realised that it is Karnataka made illicit arrack. Thousand packets, each containing 100 ml was found in the two bags. After seizing the items and the auto rickshaw both the driver and the passenger were arrested, the crime was registered and the accused and the contraband were produced before court on the same day. On completion of investigation the charge sheet was laid before the Judicial First Class Magistrate, Kasaragod where the case was taken on file as C.P. No. 4 of 2004. Later when committed, the case was made over to the trial court.

(2.) The third accused is the owner of the auto rickshaw. After hearing counsel on both sides, when the charge was framed, read over and explained, the accused persons pleaded not guilty and claimed to be tried. The prosecution evidence consisted of the oral evidence of PW1 to PW6, Exts. P1 to P7 documents and material objects, identified and marked as M.Os 1 and 2. On completion of evidence when the accused were examined under Section 313 Cr.P.C., they denied all incriminating materials and reiterated their innocence. Accused 1 and 2 pleaded that they have no connection whatsoever with the contraband. They also maintained that the items were not seized from them. The 3rd accused wanted to convince the court that the auto rickshaw does not belong to him. As there was no ground for acquittal under Section 232 CrPC, the accused were called upon to enter on their defence; however no evidence was adduced from their side. After hearing counsel on both sides, the learned Sessions Judge found accused Nos. 1 and 3 not guilty and they were acquitted. The second accused was found guilty under Section 55(a) of the Abkari Act and was sentenced to undergo simple imprisonment for one year and to pay a fine of Rs. 1,00,000/-, in default simple imprisonment for six months. That finding against the 2 nd accused is called in question in this appeal.

(3.) After admitting the appeal, by order dated 19.12.2017 this Court suspended the sentence and granted bail to the appellant on his executing a bond for Rs. 50,000/- with two solvent sureties each for the like amount to the satisfaction of the trial court.