SOMAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE appellant was convicted of the offence under Section 8 (2) of the Abkari Act ("the Act for short) and was sentenced to undergo rigorous imprisonment for one year and to pay Rs. 1,00,000.00 as fine. This appeal is directed against the said conviction and sentence.

(2.) THE case of the prosecution is that on 25-11-2000 at about 1.15 p.m. while P.W.1 the Excise Inspector and his officials were on patrol duty, the accused was seen near Kurisadi of Orthodox Church in Thriperunthura Village. It was stated that the accused was carrying a bottle containing about 1 = litres of arrack. 200ml. was taken as sample in a bottle of 375 ml. from out of it. That sample bottle and the residue were sealed and labelled,. The accused and the contraband articles were produced before the Magistrate on the same day.

(3.) THE learned counsel for the appellant submits that there is no legal evidence to hold the appellant guilty. The very fact that the contraband articles mentioned in Ext.P3 were not produced as directed by the learned Magistrate on the next working day before the jurisdictional Magistrate would show that the property produced in court was not the same which was seized from the possession of the accused. That contention cannot be accepted, since the learned Magistrate before whom the properties were produced on the same day did not find anything to suggest that it was not in a sealed or labelled condition; the evidence given by P.W.1 got support from the documents and other witnesses. Though one witness was examined on the side of the defence to contend that the accused was taken into custody on suspicion and that no article was from his possession, that was rightly disbelieved by the trial Court. From the evidence on record it is seen that 1 = litres of liquor which on analysis was found to contain 20.15% by volume of ethyl alcohol was seized from the possession of the accused. The possession was of illicit liquor and as such the offence under Section 8(1) punishable under Section 8(2) of the Act, stood established. The conviction is only to be confirmed. It was mentioned by the learned trial Judge that there was no other case pending against the appellant. The quantity seized is only 1 = litres. Since the appellant was in custody from 25-11-2000 to 23- 12-2000, substantive sentence can be reduced to the period of detention already undergone by him.