SHAJI, S/O. KRISHNAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE challenge in this revision petition is the concurrent conviction entered and the sentence passed against the petitioner for offence under Section 8(1) read with Sec. 8(2) and Sec. 55 (g) of the Abkari Act. He was sentenced to rigorous imprisonment for two years and to pay Rs. 1,00,000.00 as fine and in default to undergo simple imprisonment for three months each.

(2.) THE case of the prosecution is that on 13-12- 2003 at about 12.30 p.m. when P.W.1 the Excise Inspector of Excise Range, Kozhikode was on patrol duty along with his subordinates and when they reached near the Higher Secondary School of Medical College Campus, a reliable information was received that the accused was distilling arrack in his house bearing No. B18/151. Accordingly, a search memo was prepared and forwarded the same to the court and, thereafter, P.W.1 and his Excise party along with the witnesses reached the said house. The front door of the house was seen closed and so P.W.1 and others went to the rear side of the house. They could then see the accused coming out of the house with a can in his hand. He was intercepted. The can was examined. By smell and taste the liquid in it was identified to be arrack. Thereafter, the said house was searched in the presence of the accused and witnesses. P.W1 and others could find the distilling set (the set already used for distillation) and also three barrels of 200 litre capacity which contained full of wash. When the southern room of that building was searched, barrels of a capacity of 200 litres each containing full of 'wash' was found. Another cement barrel /jaddy of a capacity of 200 litres with full of wash was also seen in that room. When the northern room of that house was searched, 6 cans of 10 litre capacity each containing full of arrack, three cans of 5 litre capacity which also contained full of arrack were seen. In the aluminum vessel of a capacity of 100 litres, which was part of the distilling set, about 30 litres of 'used wash' i.e. wash after distillation was seen. Items contained in the cement jaddy, plastic cans and other vessels were identified by smell and taste by P.W.1 and other officers, as P.W.1 and other officers were experienced in that field to identify the same by smell and taste. Samples taken from the 'wash', illicit liquor/arrack etc. were sealed then and there. Ext.P2 mahazar was prepared for the seizure of the articles mentioned above. Labels containing the signatures of the accused and the witnesses were affixed on the sample bottles, barrels and cans seized as per Ext. P2. Ext.P2, the seizure mahazar contains the specimen impression of the seal affixed on the sample bottles etc. and it was that sample which was used by P.W.1 for sealing the sample bottles. What transpired then and there was also described in detail in that mahazar. The independent witnesses were also convinced of that fact. All those articles were seized as per Ext.P1 search list prepared then and there which was signed by the petitioner as the person who was described as the owner of the house searched. He has also signed on the reverse of Ext.P1 for having received the copy of the search list. The accused was arrested then and there for which Ext.P3 arrest memo was prepared. The crime and occurrence report (Ext.P4), was prepared on the same day. The accused, records and articles were produced before the Magistrate on the same day at 7.20 p.m. After investigation, charge was laid.

(3.) THE learned counsel for the petitioner vehemently argues that the petitioner was not the owner of the house as evidenced by Ext.P7. Though the owner Sherly Bai was cited as a witness, the learned Public Prosecutor who conducted the case before the trial Court, for reasons best known to him, did not examine her to prove as to how the petitioner happened to be in control or possession of that house. The learned Public Prosecutor submits that though that witness should have been examined, for the mere non-examination of that witness, the prosecution case cannot be thrown overboard since the evidence and circumstances obtained in this case would clearly prove that the petitioner was in actual possession of the articles found in that house. He had no explanation as to how he happened to come out of the house with a can containing illicit arrack . It is also important to note that it was in his presence the entire house was searched where from several cans containing illicit liquor and barrels containing 'wash' intended for manufacture of liquor were found, that too, kept in different rooms. The further fact is that the petitioner who signed Ext.P1 search list, described himself as the owner. That also is of paramount importance. The very fact that he had no explanation, as to how he happened to come out of the house carrying with him a can containing illicit arrack speaks volumes. The further fact is that the front door of the said house was seen closed and plastic cans containing illicit arrack and barrels of wash were found in different rooms in that house. It was so proximate and interconnected that the chain of evidence and circumstances would clearly establish that the petitioner alone was the person having immediate control and possession of the articles found therein. When a set of facts are presented before court it is for the court to have reasonable deductions and inferences which are permissible under law. It cannot be branded as assumptions or suppositions. There was only a blunt and outright denial by the accused. He did not try to explain the incriminating circumstances against him.