KRISHNANKUTTY Vs. STATE OF KERALA

JUDGEMENT

(1.) CHALLENGING the judgment dated 24/01/2008 in S.C.No.407 of 2007 of the court of the Additional Sessions Judge (Ad hoc)-II, Ernakulam, the sole accused therein preferred the present appeal.

(2.) THE prosecution case is that, on 24/01/2005 at about 6.15 p.m., the accused was found keeping possession of illicit arrack on the southern side of a quarry belonging to one 'Giji Muthukadan' in Kombanad Village and therefore the accused has committed the offence punishable under Sections 8(1) and (2) of the Abkari Act. With the above allegation Crime No.2 of 2005 was registered in the Perumbavoor Excise Range and on completing the investigation, a report was filed in the Judicial First Class Magistrate Court, Perumbavoor and the learned Magistrate by his proceedings dated 17/09/2007 in C.P.No.29 of 2007 committed the case to the Sessions Court where the same was received as S.C.No.407 of 2007 and subsequently made over to the present trial court for disposal. When the accused appeared, after hearing both the prosecution as well as the defence, a formal charge was framed against him for the offence punishable under Section 8(1) and (2) of the Abkari Act. When the said charge read over and explained to the accused, he denied the same. Consequently, the prosecution adduced its evidence by examining PWs.1 to 5 and producing Exts.P1 to P11 documents. No evidence is adduced from the side of the defence. Mos.1 to 3 series are identified and marked as material objects. The trial court finally found that the prosecution has succeeded in establishing the case against the accused and accordingly he is found guilty and thus he is convicted for the offence under Section 8 (1) read with Section 8(2) of the Abkari Act. On such conviction, the appellant is sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.1,00,000.00, in default of which to undergo simple imprisonment for three months. Set off is allowed. It is the above finding, order of conviction and sentence are under challenge in this appeal.

(3.) TO prove the case of the prosecution, they mainly depend upon the evidence of PW.1 the then Excise Inspector attached to the Excise Range, Perumbavoor. Thus, when PW.1 was examined, he deposed that on 24/01/2005, while he was conducting patrol duty along with the excise party in the evening in Kombanad Village, he reached Crariyeli Society junction. And when he proceeded through the public road leading to Munipara at a distance of 250 metres from the junction, he got information that the accused was dealing with illicit arrack near a culvert in the road and accordingly he proceeded to the said place. It is the further case of PW.1 that, before he reached the spot, the accused was found holding something in his hands and attempting to escape at a distance of 25 metres. So, according to PW.1, he intercepted him from proceeding ahead and the plastic can held by him was examined in the presence of independent witnesses. Thus, he was found in possession of a can, having capacity of 5 litres, which contained one litre of arrack. It is also the case of PW.1 that a glass tumbler having the smell and sediment of arrack was recovered from the place and currency notes of Rs.120.00 were also recovered from the person of the accused. According to PW.1, the accused was arrested from the spot and a sample of the arrack was drawn in a 375 ml. bottle by taking about 200 ml. arrack. The sample bottle and the plastic can were duly sealed and labelled. The thondi articles were taken into custody after preparing seizure mahazar on the spot. According to him, thereafter himself and party returned to the Excise Range Office, and the thondi articles and the accused were produced before the Excise Range Officer and accordingly, a crime was registered. Thus, when PW.1 was examined, Ext.P1 arrest memo, Ext.P2 arrest intimation, Ext.P3 seizure mahazar, Ext.P4 crime and occurrence report, Ext.P5 thondy list, Ext.P6 copy of forwarding note and Ext.P7 report containing the specimen impression of the personal seal used by PW.1 for the preparation of sample bearing the signature of PW.1 were identified. PW.1 has also identified the thondi articles produced before the court as Mos.1 to 3 series.