SOMASEKHARAN PILLAI Vs. STATE OF KERALA

JUDGEMENT

(1.) THE challenge in this appeal is against the judgment dated 8.1.2007 in S.C.No.407 of 2001 of the court of Additional Sessions Judge, (Abkari), Kottarakkara, by which the appellant, being the sole accused, was convicted for the offence under section 8(1) and (2) of the Kerala Abkari Act.

(2.) THE prosecution case is that, at about 10.20 a.m. on 21.10.1998, the accused was found in possession of 8 ltrs. of arrack in a 10 ltr. capacity can, while he was transiting the same for sale, as detected by PW1 and party, and thus the accused has committed the offence punishable under section 8(1) and (2) of the Kerala Abkari Act. On the basis of the above allegation, crime No.35 of 1998 was registered in the Chadayamangalam police station and on completing the investigation, charge was laid in the court of Judicial First Class Magistrate-II, Kottarakkara, wherein C.P.No.229 of 2000 was instituted and subsequently, the same was committed to the sessions court for trial by order dated 5.1.2005 of the learned Magistrate in the committal proceedings and the case was received in the sessions court as S.C.No.407 of 2001, from where the same was made over to the court of Additional Sessions Judge (Abkari), Kottarakkara, and subsequently transferred to the present trial court for disposal.

(3.) TO prove the prosecution case, among Pws.1 to 5, the prosecution mainly rely upon the deposition of Pws.1 and 2, who detected the crime, among which PW1 is the then Excise Inspector, Chadayamangalam Excise Range offoce and PW2 was the then Preventive Officer of the same Excise Range Office. According to these witnesses, on 21.10.1998 at about 10 a.m., while they were coming through Plappally-Sadanandapuram road, which lye in Ummannur village, from west to east direction, they saw the accused at a distance of 25 ft., while he was coming by holding a black can in his right hand. According to Pws.1 and 2, they intercepted the accused and on examination of the content of the black can by smelling and tasting, they realised it as arrack and according to Pws.1 and 2, the accused was arrested from the spot itself. They have also stated that, they have prepared Ext.P2 seizure mahazar, and the contraband article was seized in the presence of independent witnesses and the samples were drawn as described therein. According to Pws.1 and 2, after the process of arrest and seizure, they reached in the Excise Range office and prepared Ext.P3 occurrence report and Ext.P4 property list and thereafter produced the contraband article as well as the accused in the committal court. Ext.P5 is the Chemical analysis report and M.O.1 is the can which claimed to have seized from the possession of the accused. When PW1 was examined, Ext.P1 arrest memo, Ext.P2 mahazar, Ext.P3 occurrence report, Ext.P4 property list and Ext.P5 chemical analysis report were marked through PW1. PW1 has also identified M.O.1 can. When PW2 was examined, he had also deposed in terms of the deposition of PW1. PW3 is the then Excise Inspector who undertook the further investigation and eventually laid the charge on completing the investigation. Pws.4 and 5 are independent witnesses cited and examined by the prosecution, but they turned hostile towards the prosecution. As I indicated earlier, the defence has also adduced its evidence which consists of the deposition of Dws.1 and 2 and Ext.D1 document. DW1 is the shop owner whose name is mentioned in Ext.P2 mahazar. When DW1 was examined, he deposed that, on the date of the occurrence at about 2 o'clock, PW1 arrived in front of his shop in a jeep in which he had seen the accused and PW1 asked him to reach the Excise Range office and thereafter he left the place. He had also deposed that, he did not see the accused in front of the shop at the alleged time and on the date of the alleged incident and holding the black can with arrack. DW2 is a social and political worker. When he was examined, he had deposed that the building owned by the accused was taken on rent by one Ambalakkara Anil Kumar, a toddy shop contractor, for running the shop in that locality and there was a dispute between the accused and the said contractor connected with the rent arrears and for settling the matter, he intervened in the issue and when the shop contractor was not ready to settle the dispute, DW2 advised the accused to file a complaint before the Excise authorities and accordingly, as requested by the accused, he prepared a complaint dated 20.9.1998. A photostat copy of the said complaint is marked through DW2. These are the evidences and materials referred to and considered by the learned Judge of the trial court in her judgment, by which the accused/ appellant is convicted.