LAL SEBASTIAN S/O DEVASSIA Vs. STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM

JUDGEMENT

(1.) THE above appeal is preferred by the sole accused in S.C.No.255 of 2004 in the court of Additional District and Sessions Judge, Fast Track (ADHOC II), Kozhikode, challenging the judgment dated 25.11.2006 in the above sessions case by which the appellant is convicted under Section 8(1) and (2) of the Abkari Act.

(2.) THE prosecution case is that on 25.6.2002, PW1, the Assistant Excise Inspector of Police, Balussery Excise Range and his party were conducting patrolling through Perambra-Chakkittapara area, at about 5.30 p.m., when they reached at Thazhathuvayal Equator, they got reliable information with regard to sale of arrack by the accused in front of the house of Parakkapoil Mukundan and accordingly, they went to that place. When they reached there, they saw the accused coming with 2= litre plastic can and he was intercepted and examined the plastic can and on further examination of the same, by tasting and smelling, they realised that the liquid contained therein is arrack. Thus, according to the prosecution, the accused has committed the above offence.

(3.) AS I indicated earlier, to prove the prosecution allegation, the prosecution mainly depends upon the evidence of PW1, the then ASsistant Excise Inspector of Police of Balussery Excise Range who detected the crime. When he was examined, he had deposed in terms of the prosecution allegation. He had deposed that when himself and party were on patrol duty, on receiving information, went to the side of Kuttiyadi river and the accused was found coming with a 2= litre plastic can with full of liquid which on interception, inspected and the same was realised as arrack by smelling and tasting. According to PW1, the accused was arrested as per Ext.P1 arrest memo and he had also stated that samples were drawn from the contraband article and the entire proceedings were described in Ext.P2 seizure mahazar. According to him, after the arrest of the accused and the seizure of the contraband article, he reached the Excise Officer and handed over the accused and the contraband articles to the Excise Inspector,Balussery Excise Range. PW2 had also deposed in tune with the deposition of PW1, and PW2 is the Excise Guard of Balussery Excise Range who accompanied PW1 during the time of the detection, PW3 the Excise Inspector, the Balussery Excise Range has also deposed in terms of the prosecution case and supported the evidence of PWs.1 and 2. According to PW3, he prepared Ext.P3 occurrence report, Ext.P4 remand report, Ext.P5 property list and Ext.P6 forwarding note. These documents are marked through PW3. Ext.P7 is the chemical analysis report according to which, the sample contains 18.32% of ethyl alcohol. PWs.4 and 5 are signatories to Exts.P1 and P2, who turned hostile. These are the evidence referred to by the learned Judge in his judgment and relied on to convict the appellant.