BIJU Vs. STATE OF KERALA

JUDGEMENT

(1.) These appeals are filed by A1 and A2 respectively, who faced trail and were convicted for offence Under section 55(a) of Abkari Act. They were sentenced to undergo simple imprisonment for four years and to pay Rs. 1,00,000/- each as fine and in default to undergo simple imprisonment for one year. The gist of the prosecution case is that on 30.12.1999, while PW1, the Excise Inspector and other officials were on patrol duty and when they reached Maloor Government High School at about 12.30 p.m., they got reliable information that A1 was keeping possession of spirit in his house. After preparing the search memorandum and sending it to the Court and after complying with the procedure prescribed under the Code of Criminal Procedure, they entered the house bearing no: EP VI/473 of Enadimangalam Panchayat. It is a two storied building. They searched all the four rooms situated in the ground floor but nothing could be recovered. They went upstairs. In the two rooms situated on the eastern side, they could not see any contraband articles. But in the corner of the western room they could find a plastic can of a capacity of 35 litres which contained 32 litres of spirit. There was another plastic can of a capacity of 35 litres which was seen to be wet having the smell of spirit. The fact that the liquid was spirit was confirmed by smelling and tasting it. As the Excise Officers were having sufficient experience in that field, there was no difficulty for them to identify the liquid as spirit. Sample was taken from the same. It was sealed and labelled in the presence of A1 who was present there and in the presence of other witnesses. The can which contained the remaining part of spirit was also sealed and labelled. Besides, they could also see 230 empty plastic covers each of the size 61/2 x 41/2 inches and a sealing machine named 'Naveena'.

(2.) According to the prosecution A1 used to take spirit in those plastic covers and get it sealed using sealing machine and sell it. The contention that those plastic covers were intended to be used for filling up chilly powder is seen to be only a figment of the fertile imagination of the accused, the learned Public Prosecutor submits. The contraband articles were seized as per Ext. P4 - the search list prepared for that purpose. Ext. P3 is the mahazar prepared by the Excise Inspector. Ext. P1 is the arrest memo and Ext. P2 is the notice of arrest. All the four contemporaneous documents would show that A1 was arrested then and there and the spirit was seized from that house and it was for keeping possession of the same A1 was arrested.

(3.) According to the prosecution, when A1 was questioned he disclosed the fact that it was A2, who supplied the spirit. A1 was produced before the Magistrate on 30.12.1999. The mahazar and other records were also produced on that day.