M.D.JAYARAJ Vs. EXCISE INSPECTOR

JUDGEMENT

(1.) Convicts in S.C.No.62/2005 on the file of the Additional Sessions Judge (Ad hoc-II), Kalpetta, have preferred this appeal under Section 374(2) of the Code of Criminal Procedure, hereinafter referred to as the Cr.P.C ., challenging their conviction for offence punishable under Section 55(a) of the Abkari Act. The prosecution allegation is that, on 26.04.2003 at 4.30 a.m., while CW1 T.O. Johny, Excise Inspector attached to the Excise Circle Office, Sulthanbathery and party were on patrol duty and were inspecting vehicles at Muthanga-Ponkuzhy area, a jeep bearing Registration No.TN-43Z/1830 came from Mysore direction. When he gestured to stop the vehicle, it was not stopped. Then the Excise party chased the vehicle and at the Muthanga Forest Check Post, when the vehicle was stopped, a person travelled in the jeep on the front left side jumped out and ran towards the forest and disappeared. The driver and another passenger were intercepted; when the vehicle was inspected, four bags were found placed on the platform. When opened, it contained 45 bottles of liquor by name New Janatha brandy 750 ml. capacity, in each bag; one bottle was opened and its content was tested by tasting and smelling, it was found Indian Made Foreign Liquor, which was being smuggled from Karnataka. The said bottle along with two other bottles were taken as samples and the remaining contraband items were seized under Ext.P1 mahazar and both the passengers of the jeep were arrested and the jeep was taken into custody. The four bags containing liquor were sealed and labelled and the matter was reported to the Excise Range Office. Thus Crime No.28/2003 of the Excise Range Office, Sulthabathery was registered. Both the accused were produced before court and were remanded to judicial custody. On completion of investigation, the charge sheet was laid before the Judicial First Class Magistrate, Sulthanbathery against the appellants and the owner of the jeep. The learned Magistrate, after completing the procedural formalities, committed the case to the Sessions Court, Kalpetta, from where the case came before the trial court.

(2.) The appellants were defended by counsel of their choice. After hearing counsel on both sides, when the charge for offence punishable under Section 55(a) of the Abkari Act was framed, read over and explained, all of them pleaded not guilty. The owner of the jeep also faced trial as the third accused. Four witnesses were examined on the side of the prosecution as PWs 1 to 4. Exts.P1 to P8 were also marked. 177 bottles of liquor in four bags were identified and marked as MO1 series. On completion of prosecution evidence, when questioned under Section 313(1)(b) Cr.P.C., all the accused reiterated their innocence. As it was not a fit case for acquittal under Section 232 Cr.P.C., they were called upon to enter on their evidence in defence. But no evidence was adduced by them. After hearing counsel on both sides, by the impugned judgment, the third accused was found not guilty and acquitted under Section 235(1) Cr.P.C. Accused 1 and 2 were found guilty, convicted and sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.1 lakh each, in default to undergo rigorous imprisonment for six months. That finding is now called in question under Section 374(2) of the Cr.P.C.

(3.) I heard Sri.T.G. Rajendran, the learned counsel for the appellants and also Sri.K.B. Udayakumar, the learned Senior Public Prosecutor for the respondent State. The trial court records were also perused.