MOHANDAS Vs. CIRCLE INSPECTOR OF EXCISE

JUDGEMENT

(1.) Revision petitioner is the accused in C.C. No. 200 of 1997 on the file of the Judicial Magistrate of the First Class- II, Thamarassery and the appellant in Crl.A.No. 65 of 1999 on the file of the Court of Sessions, Kozhikode Division. He was convicted under section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.15,000/-, in default to undergo simile imprisonment for two months by judgment dated January 6, 1999. On appeal by the accused, the learned Sessions Judge confirmed his conviction, but modified the sentence to rigorous imprisonment for one month and to pay a fine of Rs.5,000/-, in default to under go simple imprisonment for two months. The accused has challenged his conviction and sentence in this revision.

(2.) The case of the prosecution, as unfolded in evidence before the trial court, in brief, is this:- PWs.1 and 3 then Preventive Officers attached to the Excise Circle Office, Kozhikode. On November 23, 1995 they were on patrol duty along the road leading from Kuttiery to Nalukuzhi in Manassery amsom, Thalekkode desom in Kozhikode Taluk. They found the accused carrying MO1 can in his hand. On examination it was found that the can contained three litres of illicit arrack. The accused was arrested on the spot and the contraband articles were seized. Sample was taken and sealed and labelled and Ext.P1 mahazar was prepared in the presence of PW2, an independent witness. The accused was brought to the office. PW4, the Excise Circle Inspector recovered the records and material objects and registered the case against the accused. On his request the sample was sent for chemical analysis. Ext.P4 the report showed that the sample contained 36.41 % by volume of ethyl alcohol. PW4 conducted the investigation and laid the charge before the trial court.

(3.) The accused on appearance before the trial court pleaded not guilty to the charge under section 58 of the Abkari Act. PWs.1 to 4 were examined and Exts.P1 and P5 and MOI were marked on the side of the prosecution. When questioned under section 313 Cr.P.C. by the learned Magistrate, the accused denied the entire incident. PW4 was recalled at the request of accused and further cross- examined on the side of the accused.