T V PRATHAPAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE appellants are accused 1 and 2 in Sessions Case No.599/2004 on the file of the Additional Sessions Judge (Adhoc-II), Thalassery. The Station House Officer, Payyannur Police Station prosecuted the appellants and another alleging offence under Section 8(2) of the Kerala Abkari Act, with a plea that on 21/1/2003 the then Sub Inspector of Police, who was examined as PW1, got information that illicit arrack was transported in an autorickshaw bearing Registration No. KL/13/F-8187 at Echilamvayal in Vellur amsom. PW1 with party proceeded to the spot and intercepted the autorickshaw. The appellants were found inside the autorickshaw driven by another who was arrayed as the third accused. On inspection, it was found that the autorickshaw was carrying three black jerry cans of ten litres capacity, each containing eight litres of illicit arrack. The contraband was seized. Sample was taken. The appellants and the other accused were arrested. Seizure mahazar was prepared. After returning the Police Station, a case was registered. The investigation was entrusted to the Additional Sub Inspector of Police, who was examined as PW3. Appellants and other accused were later released on bail. PW3, after completing the investigation submitted the charge sheet before the Judicial Magistrate of the First Class, Payyannur accusing offence under Section 8(2) of the Kerala Abkari Act. Since the offence alleged is exclusively triable by a Court of Session, after complying with requisite procedures, the case was committed to the Court of Session, Thalassery. From there, it was made over to the Additional Sessions Judge. In response to the process issued, the appellants entered appearance. The third accused was reported absconding. Therefore, the case against the third accused was split up. Appellants and the prosecution were heard. A charge for the above said offence was framed. When read over and explained, the appellants pleaded not guilty. Therefore, they were sent for trial. On the side of the prosecution, PWs 1 to 3 were examined. Exhibits P1 to P6 and MO1 series were marked. After closing the evidence for the prosecution, the appellants were questioned under Section 313 of the Code of Criminal Procedure. They took a defence of total denial. Though they were called upon to enter their defence, no defence evidence was let in. The learned Additional Sessions judge, on appraisal of the evidence, arrived at a conclusion of guilty. Consequently, appellants were convicted and sentenced to rigorous imprisonment for two years and a fine of Rs.1,00,000/- with a default sentence of simple imprisonment for six months. Assailing the above conviction and sentence, this appeal is preferred.

(2.) I have heard Adv. Sri M.V.Amaresan, the learned counsel appearing for the appellants, besides the learned Government Pleader Smt. A. Lowsy. The judgment impugned and the evidence on record were perused.

(3.) ON a critical scrutiny of the evidence of PWs 1 and 2, I find little reason to disbelieve their evidence regarding the arrest and seizure. Their evidence is corroborated by Exhibit P1 recovery mahazar on material points. Though PWs 1 and 2 were subjected to searching cross-examination, no material was disclosed to disbelieve them. There is no material to show that PW1 was anyway ill motivated to cook up a case against the appellants or PW2, who is an independent witness, was supporting prosecution with any ulterior motive. Therefore, I find that the trial court was correct in believing their testimony.