RUDRAKSHAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE appellant was convicted by the Additional Sessions Judge, Kollam for the offence under Section 55(a) of Abkari Act and was sentenced to rigorous imprisonment for three years and a fine of Rs.1,00,000.00.

(2.) THE case was detected by PW4, the Sub Inspector of Police. It is alleged that while he and other police officials were on patrol duty on 5.10.1999 at about 3.30 P.M, they saw the accused carrying a plastic can which contained 3 litres of arrack. He was intercepted. The can and was examined by smell and taste. It was identified as illicit arrack. Sample of 150 ml. was taking; it was sealed and labelled in the presence of the accused. The can was also seized. PWs 1 and 2 were present at the spot and they signed Ext.P1 (seizure mahazar). The accused was arrested. Based on the seizure mahazar, Ext.P2(FIR) was registered. The accused was produced before the learned Magistrate on the next day. The seizure mahazar and FIR were produced before the learned Magistrate on 6.10.1999. When the sample was sent for examination, it was found to contain 26.09% by volume of ethyl alcohol. PW1 to PW5 were examined and Exts. P1 to P4 were marked. The can containing residue liquor was also identified.

(3.) THE learned counsel for the appellant submits that the court below should have accepted the evidence given by PW3 and PW4 and it is further submitted that the arrest memo and arrest notice evidencing arrest of the accused were not produced. The property was produced before the court only on 10-11-1999. No plausible explanation was given by the prosecution for the delay in production of the articles. It was also not stated who was in possession of the contraband items and sample till those articles were produced before the court. Lastly, it is argued that the final report was filed by the Assistant Sub Inspector of Police who is not an Abkari Officer and as such the court below should not have taken cognizance of the case in view of Section 50 of the Abkari Act.