UDAYAN S/O. SURENDRAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE appellant challenges the conviction and sentence passed against him for offence punishable under Sec.55(a) of Abkari Act. He was sentenced to R.I. for 1= years and to pay Rs.1 lakh as fine.

(2.) PW 2, the Circle Inspector of Police along with his police party were on patrol duty on 16.7.1999 at about 4.30 PM. The appellant was found on the footpath in front of Fashion Tailors on the southern side of the road leading to Vellanadu. He was having in his possession a black can with a green lid. That can was of a capacity of 10 litres. When examined it contained full of liquor. It was identified by smell and taste as illicit arrack. That can was sealed. The mahazar (Ext.P1) was prepared for the seizure of the contraband. The accused was arrested. He was produced before the learned Magistrate on the next day. The records including the property list were produced before the learned Magistrate on the next day, ie; on 17.7.1999. The investigation was conducted by the Sub Inspector of Police (PW6) and final report was filed by PW7. The accused pleaded not guilty.

(3.) LEARNED counsel for the appellant submits that the court below should not have relied upon the evidence given by the prosecution to find the appellant guilty. More specifically it is pointed out by the learned counsel that as per the seizure mahazar, the plastic can was having a lid of green colour. It was stated to have been sealed by PW2 in the presence of the witnesses. The properties were produced before the learned Magistrate on 17.7.1999 itself as per Ext.P4 property list. Since the seizure mahazar and all other records including Ext.P4 were produced before the court, the learned Public Prosecutor submits that there was no delay in production of the properties. But the learned counsel for the appellant submits that when the plastic can was produced before the court at the time of trial it was found to contain a lid of red colour which would sufficiently indicate that the can which was produced before the court was not the one allegedly seized from the possession of the appellant. Though it was stated in Ext.P1 that the sample was taken, the description of the same, especially as to the quantity of the sample taken was not mentioned. Ext.P4, the property list would show that besides the plastic can containing the liquor mentioned above, a sealed bottle of 180ml was produced as sample. But the curious aspect is that the said sample shown in Ext.P4 was not sent to the chemical examiner. Instead, another sample was taken by the court.