KELU Vs. STATE OF KERALA

JUDGEMENT

(1.) IN Sessions Case No.161/2002 on the file of the Additional Sessions Judge (Ad hoc) II, Kasaragod, the appellant, who was the accused, was convicted for offence under Section 55(a) of the Abkari Act and sentenced to rigorous imprisonment for one year and a fine of rupees one lakh with a default sentence of rigorous imprisonment for three months. The above conviction and sentence are under challenge in this appeal.

(2.) THE appellant was prosecuted by the Sub Inspector of Police, Rajapuram Police Station, who was examined as PW3, for the above offence with a plea that on 30.9.2000 at 10 p.m. while PW6, the Assistant Sub Inspector of Police was in-charge of the Police Station got information that the appellant was dealing illicit liquor at his house at Kottodi in Kallar village. PW6 rushed to the spot and found the appellant standing under a coconut tree in his property comprised Survey No. 50 of Kallar village, near his house with few cardboard boxes. On inspection it was found that the cardboard boxes contained 48 bottles, each containing 180 ml and 24 bottles of 375 ml of No.1 Highway Fine Whisky, Indian Made Foreign Liquor. The appellant was arrested for which Ext.P8 arrest memo was prepared. The contraband was seized. From 180 ml bottles, 4 bottles were taken as samples. From 375 ml bottles, 2 bottles were taken as samples. The samples were sealed. Ext.P1 seizure mahazar was prepared. Returning to the Police Station, a case was registered as Crime No.177/2000 for offence under Section 55(a) of the Abkari Act. PW3, the Sub Inspector of Police, on resuming the office on the next day, took over the investigation. He completed the investigation and submitted a charge sheet alleging the above offence before the Judicial Magistrate of the First Class-I, Hosdurg. Finding that the offence alleged is exclusively triable by a court of session, the case was committed to the court of session, Kasargod. From there, it was made over to the Additional Sessions Judge. The Additional Sessions Judge issued process responding to which the appellant, who was later released on bail, entered appearance. Either side was heard and a charge for the above said offence was framed. When read over and explained, the appellant pleaded not guilty. Therefore, he was sent for trial. PWs 1 to 6 were examined. Exts.P1 to P10 and MOs 1 and 2 series were marked. After closing the evidence for the prosecution, the appellant was questioned under Section 313 of the Code of Criminal Procedure. The appellant denied the incriminating evidence. No defence evidence was let in. The learned Additional Sessions Judge, on appraisal of the evidence arrived at a conclusion of guilty, consequent to which the impugned conviction and sentence were passed.

(3.) PW1 is an attestor to Ext.P1. Though he would deny witnessing the seizure of the liquor from the property he would admit the signature in Ext.P1 and the presence of the appellant. He would further depose that the boxes were in front of the house of the appellant. PW2 is an attestor to Ext.P2 scene mahazar.