MURALEEDHARAN NAIR Vs. STATE - SHO DHARMADAM POLICE STATION

JUDGEMENT

(1.) PW5, the Sub Inspector of police, Dharmadam Police Station, in Crime No.99/99, prosecuted the appellant and another as accused 1 and 2 in Sessions Case No.277/2000 before the Additional Sessions Judge (Ad hoc-1), Thalassery, accusing offence under Section 55(a) of the Abkari Act with an allegation that at 6.15 p.m., on 14.6.1999, the appellant as the driver of jeep bearing Reg. No.KL-14/7169 along with the 2nd accused were found transporting 4 bottles each containing 750 mls of Honey Bee, one bottle containing 500 mls of Honey Bee and 2 bottles, each containing 750 mls of McDowell whisky.

(2.) BOTH the accused in response to the process issued entered appearance before the trial court and pleaded not guilty to the charge when framed, read over and explained. Therefore, they were sent for trial. On the side of the prosecution, PWs 1 to 5 were examined. Exts.P1 to P6 and MOs 1 to 5 were marked. When questioned under Section 313 of the Code of Criminal Procedure, they took a defence of total innocence and pleaded that the case was falsely foisted against them. The appellant further took a plea that he was not the driver of the jeep but the jeep was driven by one Yasodhara Gowder. In support of the defence plea, one witness was examined as DW1. Before pronouncing the judgment, the 2nd accused died. The learned Additional Sessions Judge, however, found both the accused guilty. The case against the 2nd accused was disposed as abated. The appellant was convicted and sentenced to rigorous imprisonment for one year and a fine of rupees one lakh. Aggrieved by the above conviction and sentence, this appeal is preferred.

(3.) PW1, the Sub Inspector of Police, had given evidence in support of the prosecution case. His evidence was corroborated by the testimony of PW2, the Head Constable. Ext.P3, the recovery mahazar also corroborates with the evidence of PW1 and 2. PW3 and 4, who are two independent witnesses though admitted their signatures in Ext.P3 recovery mahazar denied of witnessing the arrest of the appellant or seizure of the contraband. Regarding the sampling also the evidence of PWs 1 and 2 are convincing. Though PWs 1 and 2 were subjected to searching cross examination, no material was disclosed to disbelieve them. Therefore, I find that the trial court was justified in believing the prosecution case regarding the seizure of the liquor bottles. The very case of the prosecution is that the appellant and the other accused procured the same from a licensed outlet. That being so, I find that the appellant and the other accused can be prosecuted only for possessing liquor exceeding the limit. It is admitted that as on the date a person could possess 1.5 litres of liquor. Possession of liquor upto 3 litres by the accused together is within the limit. The appellant and the other accused are answerable only for the remaining two litres. Therefore, I find that the appellant is not liable for conviction and sentence under Section 55(a) of the Abkari Act, but is liable to be convicted and sentenced for offence under Section 63 of the Abkari Act. Having due regard to the quantity involved, I find that a sentence of imprisonment till the rising of the court with a fine of Rs.3,000/- would meet the ends of justice.