NANDANAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE appellant was convicted by the learned Addl. Sessions Judge (Adhoc)-1, Pathanamthitta for offence punishable under Sec.8(1) r/w 8(2) of Abkari Act and he was sentenced to undergo R.I. for 2 years and to pay Rs.1 lakh as fine and in default to undergo S.I. for 2 years.

(2.) THE case of the prosecution is stated thus :- PW3, the Preventive Officer and PW1, another officer of the Excise Department along with others were on patrol duty on 7.6.2000 at about 5.30 PM. When they were walking through Vakayar-Vallikodu road in front of a market appellant was seen carrying a black can of 5 litre capacity. He was intercepted and questioned. The can contained in it 2.250 litres of liquid which by smell and taste was identified to be illicit arrack. It was sealed, labelled and seized as per Ext.P1 mahazar. Crime report was prepared based on the same. For the arrest of the accused, arrest memo and other records were prepared. The accused was produced before the learned Magistrate on 8.6.2000. The can containing the liquid was also produced before the learned Magistrate on 8.6.2000. It is stated that a requisition was submitted by PW5, the investigating officer for taking and forwarding the sample to the chemical examiner for analysis. Ext.P7, the report of the chemical examiner shows that 300ml of sample reached that office was examined, which contained 26.70% by volume of ethyl alcohol.

(3.) THE appellant died subsequent to the filing of the appeal. His son has filed application to allow him to prosecute the appeal. That petition was allowed. Learned counsel for the appellant submits that no sample was taken by the detecting officer. The plastic can which allegedly contained 2.250 litres of illicit arrack was produced before the learned Magistrate on 8.6.2000 as can be seen from the property list. The prosecution contends that MO1 was properly sealed and labelled and the signatures of the accused and witnesses were also affixed. That was seen when PWs.1 and 3 were examined in court. PWs.2 and 4, the independent witnesses did not support the prosecution. But that may not help the accused to contend that the prosecution case is untrue since the independent witnesses do show propensity to turn hostile to the prosecution may be on the host of reasons. The evidence regarding the arrest of the accused and seizure of the contraband were spoken to by PWs.1 and 3. The evidence so given by them was accepted by the court below. That part of the finding is found to be correct.