PRABHAKARAN, S/O.CHANDRAN Vs. STATE OF KERALA

JUDGEMENT

(1.) IT is alleged that on 22/7/1998 at about 12 noon the first accused was found in possession of about 23.5 litres of arrack in 235 polythene covers of 100 ml. each for sale, at the toddy shop No.85, of which the second accused was the licensee. According to the prosecution, the accused therein committed the offence punishable under Section 55(a) & (i) of the Abkari Act. But the trial court after trial found that the first accused is guilty of the offence under Section 55(a), whereas the second accused committed the offence under Section 55(i) of the Abkari Act and accordingly they are sentenced, as per judgment dated 27/7/2005 in S.C.No.214 of 2000 of the Additional District and Sessions Judge (Ad hoc) Court -I, Kollam. Challenging the above finding, conviction and sentence accused Nos.1 and 2 therein preferred the above appeal.

(2.) THE trial in the above case commenced on framing charge against the accused for the offence punishable under Section 55(a) & (i) of the Abkari Act which, when read over and explained to the accused, they denied the same and pleaded not guilty. Consequently the prosecution adduced its evidence by examining PWs.1 to 5 and producing Exts.P1 to P6 documents. MO.1 is also identified and marked by the prosecution. The plea taken by the first accused is that on the date of the alleged incident he came there as a labourer for the renovation work connected with the shop in question. According to the second accused, he is in no way responsible for the alleged incident and during the relevant time the toddy shop was not functioning. However, the learned Judge of the trial court finally found that, since the seized contraband item of arrack was found within the shop premises and in the custody of the first accused, it is easily inferable that the contraband was entrusted to the first accused by the 2nd one for sale from the toddy shop and accordingly held that the second accused is liable for the offence punishable under Section 55(i) of the Abkari Act for stockage/storage of arrack in the toddy shop since the offence under Section 55(a) covers "stored for sale as well" and it is further held that the first accused is guilty of the offence under Section 55(a) of the Abkari Act. Accordingly, accused Nos.1 and 2 respectively are convicted for the offence under Section 55(a) and (i) of the Abkari Act and on such conviction the first accused is sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.1,00,000/ - and in default he is directed to undergo simple imprisonment for six months, whereas the second accused is sentenced to undergo rigorous imprisonment for 4 years and to pay a fine of Rs.1,00,000/ - under Section 55(i) of the Abkari Act and he is also directed to undergo simple imprisonment for one year, in case of default in paying the fine. Set off is allowed in favour of both the accused. It is the above finding, order of conviction and sentence that are challenged by accused Nos.1 and 2 in the above sessions case by filing the present joint appeal before this Court.

(3.) THE learned counsel for the appellant vehemently submitted that the prosecution has miserably failed to prove that contraband article allegedly found in the place of occurrence was in the possession of the first accused and also failed to prove that he is the employee of the second accused. It is also the contention of the learned counsel that, though the contraband article, which is alleged to have been seized on 22/7/1998, has produced before the court only on 01/8/1998 and for the delay, there is no explanation and as there is no evidence regarding the proper custody of the samples, Ext.P6 chemical analysis report cannot be believed so as to warrant a conviction. According to the learned counsel, as the master -servant relationship between A2 and A1 has not proved no conviction against A2 would lie especially in the light of the decision of this Court reported in Muraleedharan Vs. S.I. of Police [2007 (2) KLT 662].