IBRAHIM Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS is an appeal preferred by the accused in Sessions Case No.306/1999 on the file of the Additional Sessions Judge, (Adhoc), Kalpetta. Pending appeal, he died. The widow and 7 children of the appellant got impleaded as supplemental appellants 1 to 8. The Station House officer, Pulpalli Police Station, who was examined as PW6, prosecuted the appellant alleging offence under Section 55(a) of the Abkari Act with a plea that, at 4.45 pm, on 18/9/1998, the deceased appellant was found possessing 50 packets, each containing 100ml of arrack, which was manufactured in Karanataka. PW6 seized the contraband, arrested the deceased appellant, sample was taken and seizure mahazar was prepared. Returning to the Police Station, a case as Crime No.188/1998 of Pulpalli Police Station was registered, for which Ext.P3 First Information Report was prepared. The investigation was taken over by the Sub Inspector of Police, Konichira Police Station, who was examined as PW4. After completing the investigation, PW6 submitted the charge sheet before the Judicial Magistrate of the 1st Class, Sulthan Bathery alleging offence under Section 55(a) and 8(i) & (ii) of the Abkari Act. Finding that the offences alleged are exclusively triable by a court of session, the learned Magistrate committed the case to the court of session by order dated 11.10.1999 after completing the requisite procedures. The learned Sessions Judge made over the case to the Additional Sessions Judge.

(2.) THE deceased appellant, in response to the process issued, entered appearance before the Additional Sessions Judge. After hearing either side, charge for offence under Section 55(a) of the Abkari Act was framed. When read over and explained, the deceased appellant pleaded not guilty. Therefore, he was sent for trial. On the side of the prosecution, PWs 1 to 6 were examined. Exts.P1 to P5 and MOs 1 to 3 were marked. After closing the evidence for the prosecution, the deceased appellant was questioned under Section 313 of the Code of Criminal Procedure. The deceased appellant took a plea of total denial. Though he was called upon to enter his defence, no defence evidence was let in. The learned Additional Sessions Judge, on appraisal of the evidence, arrived at a conclusion of guilt. Consequently, he was convicted and sentenced to rigorous imprisonment for one year and a fine of rupees one lakh with a default sentence of simple imprisonment for three months which is now assailed in this appeal.

(3.) PW6 would depose that on 18.9.1998, while he was moving on law and order duty, at Mullamkolli, he saw a group of people gathered. The deceased appellant was found amidst the group with a plastic cover. On examination of the plastic cover, it was found that there were 50 packets each containing 100ml of arrack manufactured in Karnataka. All the 50 packets were opened and liquor was taken in a bucket. Out of the liquor, 200ml was taken in two sample bottles. The sample bottles were sealed and labels were affixed. The remaining liquor was taken in a jerry can which was marked as MO2. MO1 series are the empty plastic packets and MO3 is the plastic cover in which the liquor packets were held by the deceased appellant. For the seizure of the material objects, Ext.P1 seizure mahazar was prepared. The appellant and the material objects were taken to the Police Station and a case was registered, for which Ext.P3 First Information Report was prepared. One of the sample was forwarded to the Chemical Examiner along with a forwarding note copy of which was marked as Ext.P4. After chemical examination, Ext.P5 report was obtained wherein it is reported that the sample contained 31.91 % by volume of ethyl alcohol. The evidence of PW3 would corroborate with the evidence of PW6. Since PWs 1 and 5 had denied witnessing the arrest of the appellant and seizure of the contraband, the question remains is whether the evidence of PWs 3 and 6 are believable to come to a conclusion regarding the arrest and seizure of the contraband. I have carefully gone through the evidence of PWs 3 and 6. Except some minor discrepancies and omissions here and there, in fact, no material is disclosed to disbelieve them. According to the learned counsel for the deceased appellant, the appellant was defended before the trial court by a lawyer who had no much experience. However, it remains a fact that the lawyer was engaged by the appellant himself and nobody can be found fault with in the event there is any deficiency in the professional service rendered by the lawyer. Going by the evidence on record, it didn't appear that there was no effective cross examination on the side of the defence. Unless materials are supplied and instructions are given, the counsel cross examining the witness can do no wonder. A witness of truth can no way be impeached even by a clever lawyer. Therefore, the plea of the learned counsel for the appellant that the appellant was not properly defended before the trial court deserves no consideration.