LAWS(KER)-2012-11-312

VINOD, S/O.KUNHIRAMAN Vs. STATE OF KERALA

Decided On November 01, 2012
Vinod, S/O.Kunhiraman Appellant
V/S
STATE OF KERALA Respondents

JUDGEMENT

(1.) THE second accused in S.C.No.562 of 2004 of the court of the Additional District & Sessions Judge Fast Track (Ad hoc-II), Kozhikode is the appellant herein, since he is aggrieved by the judgment dated 19/03/2005 in the above Sessions Case by which the learned Judge convicted him for the offence punishable under Section 55(a) of Abkari Act.

(2.) THE prosecution case is that on 21/02/2004 at about 9.30 p.m. the accused two in numbers were found, in possession of 23 bottles of Indian made foreign liquor of 180 ml. each brought from Mahe for the purpose of sale, on the eastern road margin of the public road situated on the western side of the Chalil House near to the Kuttichathan Temple, Choolaparambath, Ayanikkat amsom, desom, Koyilandy Taluk. Thus, according to the police, the accused has committed the offence punishable under Section 55(a) of Abkari Act and Rule 9 of Foreign Liquor Rules and on the basis of the above allegation Crime No.66 of 2004 was registered in the Payyoli Police Station. On the basis of the above allegation and on the police report, S.C.No.562 of 2004 was instituted and when the accused appeared after hearing the prosecution as well as the defence, a formal charge was framed against them for the offence punishable under Section 55 (a) of Abkari Act and Rule 9 of Foreign Liquor Rules. When the said charge read over and explained to the accused, they denied the same and pleaded not guilty. Consequently the prosecution adduced its evidence consisting of the oral testimony of PWs.1 to 4 and the documents namely Exts.P1 to P9. Mos.1 and 2 were identified and marked as material objects. No evidence either oral or documentary was adduced from the side of the defence. The trial court finally found that there is cogent, convincing and reliable evidence to connect both the accused in the alleged crime. Accordingly they were found guilty for the offence punishable under Section 55 (a) of Abkari Act and Rule 9 of Foreign Liquor Rules and thus they were convicted thereunder. On such conviction both the accused including the appellant herein are sentenced to undergo rigorous imprisonment for one year each and to pay a fine of Rupees One lakh each and in default of payment of fine each of them is further directed to undergo simple imprisonment for one month under Section 55(a) of Abkari Act. No separate sentence was awarded under Rule 9 of the Foreign Liquor Rules. Set off was allowed. It is the above finding, order of conviction and sentence that are challenged by the second accused in the above Sessions Case in this appeal.

(3.) THE crux of the prosecution allegation is that, in pursuance of the information received by PW.1, that the accused are involved in the sales of Indian made foreign liquor, PWs.1 and 2 and party reached at the spot and found that A1 and A2 were engaged in the sales of Indian made foreign liquor. Accordingly, Mos.1 and 2 were seized and thus the accused have committed offence charged against them. In order to prove the above allegation, the prosecution mainly depends upon the evidence of PW.1 who is the detecting officer. PW.1 was the then Sub Inspector of Police attached to Payyoli Police Station. When he was examined, he was deposed in terms of the prosecution allegation. According to him, on getting information as I mentioned earlier, himself and party reached near the premises of Choolaparambath Kuttichathan temple and at that time the temple festival was going on and he had seen both the accused selling Indian made foreign liquor from an empty cement gunny bag. According to him both the accused were arrested as per Ext.P2 arrest memo. Exts.P3 and P4 are the inspection memos with respect to A1 and A2. PW.1 has stated that he had prepared Ext.P1 seizure mahazar under which the contraband articles were seized and samples were drawn. According to him, after the arrest of the accused and seizure of the contraband articles, himself and party arrived at the Police Station and registered Ext.P5 F.I.R. in Crime No.66 of 2004 of Payyoli Police Station for the said offence. It is also the claim of PW.1 that the accused were produced before the court as per Ext.P6 Remand Report. PW.1 has also stated that the contraband articles were sent to the court as per Ext.P7 property list dated 27/02/2004. He had claimed that the samples were sent for chemical examination report from the court and thus received the chemical analysis report which is marked as Ext.P8. PW.2 is the A.S.I. attached to the same Police Station who accompanied PW.1 at the time of the detection of the crime. When he was examined, he had also deposed in terms of deposition of PW.1. PW.3 is an independent witness, but he turned hostile. PW.4 the then S.I. of Meppayyur Police Station is the officer who undertook the investigation in the present case. According to him, he had prepared Ext.P9 scene mahazar and he had further stated that he had questioned the witnesses and recorded their statements. These are the evidences and materials referred to by the learned Judge of the trial court in support of his finding and convicting the appellant.