ABDUL LATHIF @ BALIKA LATHIF Vs. STATION HOUSE OFFICER

JUDGEMENT

(1.) THE subject matter of this appeal is the challenge against the conviction and sentence imposed against the appellant vide judgment dated 19.11.2011 in S.C.No.669 of 2007 of the court of Additional District and Sessions Judge (Ad hoc) III, Kasaragod, by which the appellant who is the sole accused therein found guilty for the offence punishable under section 58 of the Abkari Act.

(2.) THE case of the prosecution is that, while the Sub Inspector of police, Kumbla police station, and party were on patrol duty, the S.I. has got an information at about 7.30 p.m. on 19.1.2006 that, a taxi jeep bearing registration no.KL3-8982 is coming towards Paivalige from Chevar containing Karnataka arrack and though the S.I. gave signal to stop the vehicle, ignoring the hand signal, the vehicle was plied away, and the S.I. and party chased the vehicle and in the meanwhile, the accused drove the vehicle to the paramba of one Amina and stopped there, and thereafter the accused was arrested and on inspection of the vehicle, the patrolling team found altogether 3,500 sachets of arrack (100 ml. each) kept in 14 plastic sacks inside the vehicle. Thus, according to the prosecution, a crime was registered as Crime No.16/06 in the Kumbla police station for the offence punishable under section 55(a) of the Kerala Abkari Act. On completing the investigation, report was filed in the court of Judicial First Class Magistrate- Kasaragod, wherein C.P.No.144 of 2007 was instituted and finally the learned Magistrate by his proceedings dated 8.8.2007 committed the case to the sessions court wherein the same was received as S.C.No.669 of 2007 from where the case was made over to the present court for disposal. When the accused was produced, after hearing the prosecution as well as the defence, the learned Judge of the trial court framed a formal charge against the accused for the offence punishable under section 58 of the Abkari Act, inspite of the fact that, the police charge was for the offence punishable under section 55(a) of the Abkari Act. When the said charge read over to the accused, he denied the same and pleaded not guilty which resulted in the further trail of the case, during which the prosecution adduced its evidence consists of the deposition of Pws.1 to 4 and Exts.P1 to P8. No evidence either oral or documentary adduced from the side of the defence. No material object is also marked. Finally, the trial court has held that there are circumstances to conclude that the prosecution has established the offence alleged against the accused punishable under section 58 of the Abkari Act and consequently, held that the accused was illegally transporting 3,500 sachets of arrack (100 ml. each), (which is meant for sale in the State of Karnataka only), in the jeep driven by him bearing registration No.KL3-8982, and he was caught with it by the police party lead by PW3 after chasing the jeep and thus the accused has committed the offence punishable under section 58 of the Abkari Act and accordingly, he is convicted thereunder. On such conviction, the accused is sentenced to undergo rigorous imprisonment for 3 = years and to pay fine of Rs.1 lakh and in default of payment of fine, he is directed to undergo rigorous imprisonment for 3 months. Set off was allowed under section 428 of Cr.P.C. The appellant preferred the present appeal challenging the above conviction and sentence.

(3.) PWS.3 and 4 are the police officials who involved in the detection of the crime. PW3 is the then Sub Inspector of police, Kumbla police station. When PW3 was examined, he stated that in pursuance to a reliable information, himself and party proceeded to the spot and on seeing the jeep, driven by the accused, he gave a hand signal to stop the vehicle, but the vehicle, disobeying the signal, plied further and according to PW3, himself and party chased the vehicle and the accused stopped the vehicle in the land property of one Amina and at that time the accused was arrested and thereafter the contraband article contained in the jeep was examined and the same was realised as Karnataka made arrack. According to PW3, he arrested the accused from the spot and he had also seized the contraband article after drawing sample from it, and the entire proceedings including the arrest and seizure are recorded in detail in the mahazar and that mahazar is marked as Ext.P2. It is the further case of PW3 that, after he arrived in the police station, he prepared Ext.P3 FIR, in crime No.16/06 for the offence punishable under section 55 (a) of the Abkari Act. As per Ext.P4 property list, the sample was produced before the court below and Ext.P5 forwarding note was also submitted before the court for sending the samples for chemical analysis. He also deposed that the accused was produced before the court on the next day of his arrest. PW3 has also stated that he had prepared Ext.P6 scene mahazar with respect to the place of occurrence. According to PW3, when the sample was produced before the court, the residue of the sample as well as the jeep were produced before the officer authorised under section 53-A of the Abkari Act and steps were taken for disposal in accordance with section 53-A of the Abkari Act and Ext.P7 is the photographs of the residue of the contraband article after drawing the samples and Ext.P8 is the inventory for the same. PW4 is a Senior Civil Police Officer of Kumbla police station who accompanied PW3 during the detection of the crime. When PW4 was examined, he had also deposed in terms of the deposition of PW3. It is the above evidence and materials that are referred to and relied on by the learned Judge of the trial court in support of his finding and convicting the accused.