ROY K A Vs. STATE OF KERALA

JUDGEMENT

(1.) Appellant is the accused in Sessions Case No. 351/2000 on the file of the Additional Sessions Judge, (Ad Hoc - ll), Kasaragod. The learned Additional Sessions Judge, after trial, convicted the appellant for offence under S.55(a) of the Abkari Act and sentenced to rigorous imprisonment for one year and a fine of Rs.1,00,000/- with a default sentence of rigorous imprisonment for 2 months. Assailing the above conviction and sentence, this appeal is filed.

(2.) The brief facts of the case are that on 18/08/1999, while PW 4, the Sub Inspector of Police of Chittarikkal Police Station, moving on patrol duty along with PW 1, the Head Constable and other police personnel got information that the appellant was illegally keeping arrack in his house. PW 4 and party, suddenly proceeded to the house of the appellant. When they reached near the house of the appellant, a man was found coming across with a sack on his head. Seeing PW 4 and party, after abandoning the sack, the man took to his heels. Though PW 4 and party made an attempt to chase him, they were not successful. Returning to the spot, PW 4 inspected the sack and found that it contained 270 packets, each containing 100 milli litres of illicit arrack. The same was seized for which Ext. P1 seizure mahazar was prepared. Four packets were opened and collected the liquor into two sample bottles. The bottles were sealed and labelled then and there. MO 2 is the plastic sack. MO 1 series are the remaining 266 packets of arrack. MO 3 is the empty packets, from which the samples were taken. Returning to the Police Station, a case was registered for which Ext. P2 FIR was prepared. PW 4 took over the investigation. He went to the scene of occurrence, prepared Ext. P3 Scene Mahazar and questioned the witnesses. The sample bottles were forwarded to the Chemical Examiner along with Ext. P5 forwarding note. After analysis, he obtained Ext. P6 report. From Chemical Examiner's Certificate, it was revealed that sample contained 34.77% of ethyl alcohol by volume. After completing the investigation, he submitted the charge - sheet before the Judicial Magistrate of the First Class, Hosdurg, where it was taken to file as C.P.No.179/1999. Finding that the offence alleged is exclusively triable by the Court of Session, the learned Magistrate, by order dated 05/10/1999, committed the case to the Court of Session from where it was made over to the Additional Sessions Judge.

(3.) Appellant, in response to the process issued, appeared before the Additional Sessions Judge and pleaded not guilty to the charge when framed and read over. Therefore, he was sent for trial. On the side of the prosecution, PWs 1 to 4 were examined. Exts. P1 to P7 and MOs 1 to 3 were marked. Appellant took a defence of total denial. No defence evidence was let in. After trial, the learned Additional Sessions Judge arrived at a conclusion of guilt, consequent to which the conviction and sentence under challenge were passed.