T ANTONY Vs. STATE OF KERALA

JUDGEMENT

(1.) THE 2nd accused in C.C. No.974/1998 before the Judicial Magistrate of the First Class-I, Kollam, is the revision petitioner in this criminal revision petition. He was the licensee of a toddy shop. From his toddy shop, 225 plastic covers containing 100 ml. each of illicit arrack and empty polythene covers used for filling illicit arrack were seized. THE salesman of the toddy shop and the revision petitioner were arrested and tried for the offence under Section 55 (a) and (i) of the Abkari Act and were found guilty of the offence under Section 55 (a) of the Abkari Act sentencing them to undergo simple imprisonment for one year each and to pay a fine of Rs.25,000/- each. In default of payment of fine, there was a further direction to undergo simple imprisonment for one more month each, acquitting the accused of the offence under Section 55 (i). THE revision petitioner filed an appeal before the Additional Sessions Judge-II, Kollam, who confirmed the conviction and sentence. THE revision petitioner challenges the orders of the lower courts in this criminal revision petition.

(2.) THE revision petitioner raises three grounds. First is that, in view of the decision of the Division Bench of this Court in Mohanan v. State of Kerala [2007 (1) KLT 845], Section 55 (a) is attracted only in cases of possession in the course of import, export, transport or transit. For possession simpliciter the provision applicable is Section 58 of the Abkari Act under which there was no charge laid is the contention. THE prosecution has not proved any import, export, transport or transit by the revision petitioner and therefore the revision petitioner could not have been convicted under Section 55 (a), submits the counsel for the petitioner. THE 2nd contention is that there was a delay of two days in producing the contraband before the Magistrate insofar as the seizure was at 6 pm on 26.09.1996 and the contraband article, samples and records were produced before the court only on 28.9.1996. THE revision petitioner submits that for a successful prosecution, the prosecution was bound to explain the delay of two days in producing the contraband articles and samples before the Magistrate, which has not even attempted to. Thirdly, it is contended that the prosecution has not sufficiently proved that the samples which were subjected to chemical analysis were the samples drawn from the seized contraband article, insofar as the forwarding note of the court forwarding the samples for chemical analysis has not been proved in evidence, without which the petitioner could not have been found guilty. In support of the said contention, the revision petitioner relies on the decision of this Court in Anandan v. State of Kerala [2007 (3) KHC 599], wherein it has been held that even assuming that the bottle which was forwarded to the Chemical Examiner as per the covering letter of the court was the same bottle which was received under the property list produced before the Magistrate, the prosecution will have to further prove that the said sample was drawn from the contraband liquor possessed by the appellant. According to the revision petitioner, the prosecution has not discharged that burden in this case, insofar as the witnesses have not spoken anything about the same.

(3.) I have gone through the evidence of the prosecution witnesses. None of them even mention about any import, export, transport or transit so as to draw an inference that the possession by the revision petitioner was in the course of import, export, transport or transit. That being so, the decision of the Division Bench is squarely attracted to the facts of this case.