RADHAKRISHNAN S/O VIJAYAN Vs. STATE OF KERALA REP BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM

JUDGEMENT

(1.) THE Sub Inspector of Police, Chavara, Thekkumbhagam Police Station prosecuted the appellant before the Additional Sessions Judge (Adhoc-I), Kollam, in Sessions Case No.376/1998 alleging offence under Section 55(a) of the Abkari Act. The learned Additional Sessions Judge, after trial, found the appellant guilty. Consequently, he was convicted and sentenced to rigorous imprisonment for five years and a fine of rupees one lakh with a default sentence of simple imprisonment for one year. Assailing the above conviction and sentence, this appeal is preferred.

(2.) THE prosecution case is that at 6.15 p.m., on 6.6.1997, while the Sub Inspector of Police, Chavara South Police Station moving on law and order duty found the appellant carrying a plastic bag containing 40 packets, each packet containing 150 mls of arrack, near Koyivila Purasseri Junction. The contraband was seized for which Ext.P1 mahazar was prepared. The appellant was arrested. Two of the packets were taken as sample for the purpose of analysis. Returning to the Police Station, a case as Crime No.64/1997 for offence under Section 55(a) of the Abkari Act was registered for which Ext.P2 First Information Report was prepared. The appellant and the material objects were produced before the Court. The sample packets were forwarded to the chemical examiner and obtained Ext.P4 report, wherein it is certified that the samples contained 26.36% and 26.20% by volume of ethyl alcohol.

(3.) PWS 1 and 2 are independent witnesses, who are attestors to Ext.P1 seizure mahazar. They denied of witnessing the arrest of the appellant, seizure of the contraband and even attestation of Ext.P1. Though they were cross examined with the permission of the court, no material was disclosed in support of the prosecution case. PW3, the Police Constable, accompanying PW4 had given evidence in support of the arrest and seizure. PW4 would depose that while he was moving on law and order duty he saw the appellant carrying a plastic bag containing 40 packets, each packet containing 150 mls of arrack. He arrested the appellant, seized the contraband and two packets were separately sealed as sample. Returning to the Police Station, he registered the case and produced the appellant before the Magistrate concerned along with Ext.P3 property list. The sample packets were forwarded for chemical examination and obtained Ext.P4 report of the chemical examiner.