MOHAN NAIR Vs. EXCISE INSPECTOR, KONNI RANGE

JUDGEMENT

(1.) THIS appeal is directed against the conviction and sentence passed against the appellant for offence punishable under Sec.8(1) r/w 8(2) of Abkari Act. He was sentenced to R.I. for 2 years and to pay Rs.1 lakh as fine and in default to S.I. for 2 years.

(2.) SINCE the learned counsel for the appellant who filed the appeal did not turn up to argue the matter, Mr.Rajesh K. Raju was appointed as State Brief to argue the appeal.

(3.) THE case of the prosecution is that; while PW1, the Preventive Officer, PW3, the Excise Guard and other officials were on patrol duty on 17.10.1999 at about 12 Noon, the accused was found walking along the road from Poomkavu to V. Kottayam with a black can of a capacity of 5 litre. Since the appellant was found jittering he was intercepted. The can was examined. It was found to contain 2 litres of illicit arrack. It was so identified by smell and taste. From the said liquid 300ml was taken as sample in a bottle of 375ml. That sample bottle was sealed. Besides, the plastic can containing the residue was also sealed then and there. Labels containing the signature of the accused and of the witnesses were affixed on the sample bottle and also on the can containing the residue. The accused was arrested then and there, for which Ext.P2 arrest memo was prepared. Ext.P1, the seizure mahazar was also prepared. On the same day, the accused was produced before the learned Magistrate along with the occurrence report and the seizure mahazar. The property list (Ext.P5) was also produced before the learned Magistrate on the same day. It was noted that the plastic can mentioned above and the sample bottle were in a sealed and labelled condition. It was so noted in Ext.P5 as well. The evidence given by PW1, the Preventive Officer which was supported by PW3, the Excise Guard. Two independent witnesses did not support the prosecution. Independent witnesses do show the propensity to turn hostile in such cases because of host of reasons. But that is not a reason to reject the evidence given by PWs.1 and 3, the officials who prepared the contemporaneous records as mentioned above. The very fact that the accused and all the records and the properties were produced before the court on the same day would vouch for the correctness of the action taken by PW1.