KAITHAPRAVAN ANANDRAJ Vs. STATE OF KERALA

JUDGEMENT

(1.) THE sole accused in S.C.No.854 of 2005 of the court of Additional Sessions Judge (Ad hoc-1)- Thalassery, is the appellant who challenges his conviction and sentence imposed against him vide judgment dated 6.11.2007 by the above trial court.

(2.) THE case of the prosecution is that, on 13.5.2004 at 11.45 a.m., the accused was found transporting 23 bottles of 180 ml. each containing Indian Made Foreign Liquor which were salable in Pondicherri and thus the accused has committed the offence punishable under section 55(a) of the Kerala Abkari Act. When the accused appeared, after hearing the prosecution as well as the defence, a formal charge was framed against him for the offence punishable under section 55(a) of the Abkari Act, which when read over and explained to the accused, he denied the same and pleaded not guilty. Consequently, the prosecution adduced evidence consists of the deposition of Pws.1 to 4 and Exts.P1 to P9 documents. Ext.D1 was marked from the side of the defence. The trial court finally found that the accused has committed the offence punishable under section 55(a) of the Abkari Act and accordingly he is convicted thereunder and on such conviction, he is sentenced to undergo simple imprisonment for 3 months and to pay fine of Rs.1 lakh and in default, he is directed to undergo simple imprisonment for one month. It is the above findings and order of acquittal challenged in this appeal.

(3.) IN the light of the above submission of the learned counsel for the appellant as well as the learned Public Prosecutor, the question to be considered is whether the conviction and sentence imported against the appellant by the trial court is legally and factually sustainable. In the present case, it can be seen that the entire prosecution case depends upon the evidence of PW1 who is the then Additional Sub Inspector of police, Kuthuparamba police station. According to PW1, while he alongwith his party were on patrol duty, he got information regarding the sale of Indian Made Foreign Liquor and accordingly he reached in front of 'Ammas hotel' at Naravoor road junction and they found a person standing on the northern side of the hotel with a plastic bag. According to PW1, when they reached at the spot, the accused escaped from the scene abandoning the bag. Thus, PW1 prepared Ext.P1 seizure mahazar and thereafter, he proceeded to the police station and registered Ext.P2 FIR. The further investigation was undertaken by PW3, who prepared Ext.P5 scene mahazar and Ext.P7 inventory for sending the contraband article to the Assistant Excise Commissioner and Ext.P8 chemical analysis report also marked through PW3. The two independent witnesses examined by the prosecution, namely Pws.2 and 4 turned hostile to the prosecution. Though I have repeatedly gone through the evidence of the prosecution, I failed to understand as to how the prosecution party identified the accused so as to arrest him. Though PW1 claimed that the details of the accused was obtained from the witnesses, the witnesses who were examined, did not support the above version of PW1. PW1 has no claim that he has got prior acquaintance with the accused. Therefore, the allegation against the appellant that he was found in possession of the contraband article is not seen substantiated by the prosecution.