TOMY Vs. STATE OF KERALA

JUDGEMENT

(1.) Appellant is the convict in SC No.294/2003 of the Additional Sessions Court-III, Thalassery. The allegation against the appellant precisely is that on 29.08.2001 at about 18:30 hours, CW1 Sub Inspector, Kelakam police station and party found the appellant on the canal bund lane in Adakkathodu - Valumukku area in Kelakam possessing and vending arrack. After intercepting him and seizing the contraband under a mahazar, Crime No.154/2001 was registered. The seizure and arrest were made in the presence of independent witnesses. On the basis of the final report laid by the Sub Inspector, CP No.173/2001 was taken on file by the Judicial First Class Magistrate, Kuthuparamba. After enquiry, since offence punishable under Section 8(2) of the Abkari Act was revealed, triable exclusively by the Court of Session, the learned Magistrate committed the case to the Sessions Court under Section 209 Cr.P.C., where the case was taken on file as SC No.294/2003. Then the case was made over to the trial court for trial and disposal.

(2.) The appellant was defended by a counsel of his choice. After hearing counsel on both sides, when the charge was framed, read over and explained, he pleaded not guilty and claimed to be tried. He was on bail.

(3.) Prosecution examined four witnesses in its side as PWs 1 to 4 and Exts.P1 to P8 documents were marked. The material object was identified and marked as MO1. After closing prosecution evidence, when questioned under Section 313(1)(b) Cr.P.C., he denied all the incriminating materials and claimed innocent. As the learned Additional Sessions Judge felt that it is not a case warranting acquittal under Section 232 Cr.P.C., he was called upon to enter on his evidence in defence. However, no evidence was adduced. After hearing counsel on both sides and repelling the plea of innocence, by the impugned judgment, the learned Judge found him guilty under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.1 lakh, in default to undergo simple imprisonment for one month. That finding has been called in question before this Court under Section 374 of the Cr.P.C.