BIJU Vs. STATE OF KERALA REPRESENTED

JUDGEMENT

(1.) THE accused in S.C.No.314 of 2010 of the court of 3rd Additional Sessions Judge (Ad hoc-I)-Thodupuzha, is the appellant as he is aggrieved by the judgment dated 21.1.2011 of the said court by which he is convicted and sentenced for the offence under section 55(a) of the Abkari Act.

(2.) THE case of the prosecution is that, on 11.12.2009 at about 4.30 p.m. at Kumily check post, in a lorry bearing Registration No.TN-67-H-5159 driven by the 1st accused/ appellant was found in transporting 3424 ltrs. of spirit from Tamil Nadu to Kerala and thereby committed the offence punishable under section 55(1) of the Abkari Act. On the basis of the above allegation, crime no.34 of 2009 was registered in the Excise Range Office, Vandiperiyar, for the said offence. On completing the investigation, report was filed based upon which S.C.No.314 of 2010 was instituted. In fact, the charge was filed against only A1 as A2 was absconding and A1/the appellant was produced after hearing the prosecution as well as defence and a formal charge was framed against the appellant herein who denied the charge and pleaded not guilty. Consequently, the prosecution adduced its evidence by examining Pws.1 to 8 and producing Exts.P1 to P14 documents. The trial court finally found that the prosecution has succeeded in proving that the accused was found in possession of spirit and the said offence comes within the meaning of section 55(a) of the Abkari Act. Accordingly, the appellant is found guilty under section 55(a) of the Abkari Act. On such conviction, the appellant is sentenced to undergo rigorous imprisonment for a period of 4 years and also sentenced to pay fine of Rs.1 lakh and in default of payment of the fine, he is directed to undergo rigorous imprisonment for one year. Set off was allowed under section 428 of Cr.P.C. It is the above finding, order of conviction and sentence are challenged in this appeal.

(3.) THE prosecution, to buttress its case, mainly depends upon the evidence of PW5, the then Excise Inspector, Kattappana Excise Range office, who was the Detecting officer. When PW5 was examined, he has deposed that as per the orders of the Deputy Excise Commissioner, Kumily Check post, when he was on duty at Kumily check post from 8.12.2009 and on 11.12.2009 at about 2 p.m. himself and party inspected the lorry bearing registration No.TN-67-H-5159 and at that time, he saw the first accused in the driver seat and saw the 2nd accused, who is absconding, inside the lorry. According to him, on further inspection of the lorry, he saw bags of vegetables kept on the top of cans of 35 ltrs. According to PW5, he had also arrested A1 and A2, and Ext.P3 series of arrest memo and arrest notice prepared by him at the spot of seizure. Ext.P5 is the driving licence of accused that seized from the lorry. According to him, after the arrest of the accused, the accused and the contraband article were entrusted with the office of the Excise Range at Vandiperiyar.