SUGATHAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE sole accused in S.C.No.1868 of 2003 of the court of Additional District and Sessions Judge (Ad Hoc)-II, Kollam is the appellant as he is aggrieved by the judgment dated 29.12.2006 in the above sessions case by which he is convicted and sentenced for the offence under Section 8(1) of the Kerala Abkari Act (for short 'the Act').

(2.) THE prosecution case is that while Pws.1 and 2 were on patrol duty on 29.3.1999 and while they were proceeding along with the road to Kannadi ela from Karamel junction, the accused was seen proceeding from opposite direction with a bottle in his hand and he was intercepted and on inspection of the bottle which he was in his possession, the same is found to be contained 600 ml. of arrack. Accordingly, the accused was arrested from the place of occurrence and the contraband articles were seized. Thus, according to the prosecution, the accused has committed the offence punishable under Section 8(1) and (2) of the Act and on the basis of the above allegation, a crime and occurrence report No.8 of 1999 of the Sasthamcotta Excise Range was registered. On completing the investigation, a report was filed in the Judicial First Class Magistrate Court, Sasthamcotta wherein CP No.25 of 2001 was instituted and the learned Magistrate by his proceedings dated 30.7.2003 committed the case to the Sessions Court wherein the case is received and instituted as SC No.1868 of 2003 which is subsequently made over to the present trial court for disposal. Thus, when the accused appeared, after hearing the prosecution as well as the defence, a formal charge was framed against the accused for the offence punishable under Sections 8(1) and (2) of the Act which when read over and explained to the accused, he denied the same. Consequently, the prosecution adduced its evidence by examining Pws.1 to 5 and producing Exts.P1 to P6 documents. MO1 plastic bottle is also identified and marked as material object. The trial court finally found that the possession of arrack by the accused is in contravention of the prohibition contained in Section 8(1) of the Act and accordingly, held that the accused is guilty. Consequently, he is convicted for the offence under Section 8 (1) of the Act. On such conviction, he is sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.2 lakhs, in default, he is directed to undergo simple imprisonment for a further period of one year. Set off is allowed. It is the above finding and order of conviction and sentence challenged in this appeal.

(3.) TO prove the above allegation, the prosecution mainly depends upon the evidence of Pws.1 and 2. PW1, the then Excise Inspector attached to Sasthamcotta Excise Range, who detected the crime and PW2, who was then working as a Preventive Officer, accompanied PW1 at the time of detection of the crime. When PW1 was examined, he had deposed in terms of the prosecution allegation and according to him, when himself and party were on patrol duty, on 29.3.1999 and when they were proceeding along the road to Kannadi ela from Karamel Junction, they found the accused coming from the opposite direction and consequently, intercepted and inspected the bottle which was found in possession of the accused and on such inspection, it was realised that the content was 600 mls. of illicit arrack and the said fact convinced the independent witnesses who are present and also the raiding party including PW2. According to PW1, the seizure was effected and the accused was arrested from the place of occurrence on detection of the crime. When PW1 was examined, Ext.P1 mahazar, Ext.P2 arrest memo, Ext.P3 arrest notice given to the wife of the accused, Ext.P4 crime and occurrence report, Ext.P5 property list, Ext.P6 chemical analysis report are marked through PW1. He had also identified the plastic bottle allegedly seized from the accused and marked the same as MOI. When PW2 was examined, he had also deposed in tune with the deposition of PW1.