SANKARA PILLAI S/O NARAYANA PILLAI Vs. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM

JUDGEMENT

(1.) PETITIONER (as learned counsel submits, now aged about 72 years) faced trial before the learned Assistant Sessions Judge, Neyyattinkara in S.C. No.2389 of 2004 for offence punishable under Section 8(1) and (2) of the Abkari Act. He was found guilty, convicted and sentenced to undergo simple imprisonment for one year and payment of fine of Rs.1,00,000/- and in default of payment to undergo simple imprisonment for six months. Learned Sessions Judge, Fast Track (Adhoc-IV), Thiruvananthapuram in Crl. Appeal No.423 of 2010 confirmed his conviction but modified the substantive sentence to simple imprisonment for six months while the sentence of fine and default sentence were confirmed. Hence this revision.

(2.) ACCORDING to the prosecution, petitioner was found in possession of 4 litres of arrack and a glass in a rubber plantation. On getting information about the matter, P.W.4 and party reached the scene of occurrence, arrested petitioner, seized the contraband and glass (M.Os.1 and 2) along with currency notes for Rs.105/- which according to the prosecution is the sale proceeds obtained by the petitioner. P.Ws.1 and 2 are the attesters in Ext.P1, mahazar for seizure of M.O. Nos.1 and 2. Though P.Ws.1 and 2 admitted their signatures in Ext.P1, they denied witnessing the alleged seizure and arrest. P.W4 is stated to have detected the offence. P.W.3, policeman accompanied P.W.4 while detecting the offence. Both gave evidence regarding the alleged incident and identified M.Os.1 and 2. P.W.3 registered the case as Crime No.22 of 2003 of Neyyar Dam Police Station. Exhibit P2 is the FIR. P.W.4 testified that he produced M.O. Nos.1 and 2 before the learned Magistrate on 24.01.2003. Exhibit P3 is the report of chemical examination which revealed that the sample contained 32.32% per volume of Ethyl Alcohol. Exhibit P4 is the report submitted by the present Station House Officer of Neyyar Dam Police Station stating that the liquid (received after chemical examination) is lost. P.W.5 is the Assistant Sub Inspector of Neyyar Dam Police Station who investigated the case and submitted final report. P.W6 is the Thondi Section Clerk of the Magistrate's court. He stated that the M.Os were received on 24.01.2003. Exhibit P5 is the copy of Thondi Register and Ext.P6 is the copy of forwarding note for sending the sample for chemical examination.

(3.) THE mere fact that P.Ws1 and 2 have not supported the prosecution is not sufficient to discard the evidence of P.Ws.3 and 4. Exhibit P1, the contemporaneous record prepared by P.W3 for seizure of the contraband and glass (M.Os.1 and 2) support the evidence of P.Ws.3 and 4.