SASIKUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) These are appeals preferred under Section 374(2) of the Code of Criminal Procedure, hereinafter referred to as the Cr.P.C ., challenging the legality and correctness of the judgments of the Additional Sessions Judge (Abkari Act Cases), Kottarakkara in S.C.Nos.1579/2002 and 1415/2007 respectively. Both those cases arose from the final report laid by the Circle Inspector of police, Kulathupuzha in Crime No.208/2000 of Kulathupuzha police station. The prosecution allegation is that on 14.07.2000 at 5.30 p.m., the Sub Inspector of police of Kulathupuzha police station and party found the appellants possessing and vending arrack inside reserve forest in Arippa beat of Anchal forest range, about 100 metres west of Chozhiyakkodu Madan nada in Chozhiyakkodu muri in Thinkalkarikkam village. According to the prosecution, both the appellants were apprehended with the contraband, 2 litres of arrack in a jerry can of 5 litres capacity; the items were seized under a mahazar prepared in the presence of independent witnesses; sample was also collected from the spot. After arresting the appellants the crime was registered and both the appellants and the contraband were produced before court. After completing investigation the charge sheet was laid before the Judicial First Class Magistrate-I, Punalur where the case was taken on file as C.P.186/2000. After completing the procedural formalities the case was committed to the Sessions Court, Kollam from where it was made over to the trial court.

(2.) The appellants were on bail. They were defended by counsel of their choice. After hearing counsel on both sides, when charge for offence punishable under Section 55(a) and (i) of the Abkari Act was framed, read over and explained, both pleaded not guilty.

(3.) The prosecution charge contains six witnesses. Barring CWs 4 and 6, others were examined as PWs 1 to 4. Exts.P1 to P6 were also marked. Material objects were identified and marked as MOs 1 and 2. On completion of prosecution evidence, when examined under Section 313(1)(b) Cr.P.C., they denied all the incriminating evidence tendered against them. As it was not a fit case to be acquitted under Section 232 Cr.P.C., the learned Judge called upon the appellants to adduce evidence in defence. But there was no evidence in defence. It is seen that by judgment dated 27.10.2007 the second accused, who is the appellant in Crl.A.No.2162/2007, was found guilty and convicted for offence punishable under Section 55(a) of the Abkari Act and sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/-, in default to undergo simple imprisonment for six months. He was found not guilty under Section 55(i) of the Abkari Act and acquitted thereunder. In fact, page 7 of the judgment in S.C.1579/2002 shows that both the appellants were found guilty, convicted and sentenced, whereas the facing sheet indicates that the case against the first accused was split up. The reason for such splitting up cannot be inferred from the judgment. But there are reasons to suggest that, after completion of evidence the first accused had gone absconding, which necessitated filing a separate Sessions Case namely S.C.1415/2007 against him. Later, by judgment dated 12.02.2008 in S.C.1415/2007, basing on the very same evidence the first accused, who is the appellant in Crl.A.No.480/2008 was found guilty and convicted under Section 55(a) of the Abkari Act and awarded a sentence similar to one imposed on the second accused. He was also found not guilty and acquitted of offence under Section 55(i) of the Abkari Act. Thus the appellants have come up in appeal.