RAJU, S/O. PRABHAKARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 16.1.2007 in S.C.No.601 of 2003 of the court of Additional District and Sessions Judge (Ad hoc) II-Kollam, by which the learned Judge has found the appellant as guilty for the offence punishable under section 8(1) of the Abkari Act.

(2.) THE prosecution case is that, the Preventive Officer of Excise Enforcement and Anti Narcotic Special Squad, Kollam, was on patrol duty on 13.7.1999 and at about 12 in the noon, the appellant/accused was seen at Muttethu Kadavu with a plastic can and on inspection, the same was found to contain 2 = ltrs. of arrack and thus the accused has committed the offence punishable under section 8(1) of the Abkari Act. Based upon the above allegation, crime and occurrence report was registered as 111/1999 in the Karunagappally Excise Range office, for the offence under section 8(1) of the Abkari Act. On completing the investigation, report was filed in the court of Judicial First Class Magistrate-Karunagappally, on the basis of which C.P.No.118/02 was instituted and the learned Magistrate subsequently by his order dated 18.12.2002, committed the case to the Sessions court, wherein the case was taken on file as S.C.No.601/03 and made over the same to the present trial court for disposal. Thus when the accused appeared, after hearing the prosecution as well as the defence, a formal charge was framed for the offence punishable under section 8(2) of the Abkari Act and when the said charge read over and explained to the accused, he denied the same, which resulted in the further trial, during which, Pws.1 to 4 were examined and Exts.P1 to P4 were marked. M.Os.1 and 2 were also identified as material objects. No evidence either oral or documentary produced from the side of the defence. Finally, the trial court has found that the evidence let in shows that the liquor seized from the accused was potable in its form and content, and thus the accused was found in possession of arrack at the time and place as alleged by the prosecution and hence, the accused was further found guilty under section 8(1) of the Abkari Act. Accordingly, he is convicted thereunder and on such conviction, the appellant was sentenced to undergo rigorous imprisonment for a period of 2 years and to pay fine of Rs.2 lakhs and in default, to undergo simple imprisonment for a further period of one year. Set off was allowed. It is the above finding and order of conviction and sentence that are challenged in this appeal.

(3.) THE prosecution, in order to buttress its allegation, mainly depends upon the evidence of Pws.2, 3 and 4 and also the documents produced and marked. As per the prosecution allegation, the crime was detected by one Mr.Krishnankutti the then Preventive Officer of Excise Enforcement and Anti Narcotic Special Squad, Kollam. But the said Detecting Inspector is no more. It was under the above circumstance, the prosecution has relied upon the evidence of PW3, the then Preventive Officer who accompanied the Detecting Inspector at the time of detecting the crime. When PW3 was examined, he had deposed in terms of the prosecution and against the appellant. According to PW3, when he, alongwith the Detecting Officer were on patrol duty on 13.7.1999 reached at Muttethu Kadavu at about 12 noon and he had seen the accused with a plastic can. According to PW3, when himself and party reached at the place of occurrence, the accused was seen running away towards west but he was intercepted and on search of the can held by the accused, the same found containing 2 = ltrs. of arrack. According to PW3, two samples of arrack were taken, and the samples and the residue were sealed and labelled in the presence of witnesses and the mahazar was prepared. During the examination of PW3, he had identified M.O.1 as the can held by the accused and M.O.2 as one of the samples drawn from the contraband article from M.O.1 can. During the cross examination of PW3, he had also identified the accused.