RAMANKUTTY Vs. EXCISE INSPECTOR

JUDGEMENT

(1.) The Revision petitioner is the accused in C.C. No. 383/1997 on the files of the Judicial First Class Magistrate's Court, Kunnamkulam, as well as the appellant in Criminal Appeal No. 152/2000 on the files of the Additional District and Sessions Judge, Fast Track (Adhoc II), Kozhikode. He was charge sheeted and prosecuted for the offence punishable u/s 55(a) of the Abkari Act. After trial, the Revision petitioner was found guilty of the offence punishable u/s 55(a) of the Abkari Act and convicted thereunder. He was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 25,000/- (Rupees Twenty five thousand only) and in default, to undergo rigorous imprisonment for two months. Being aggrieved by the conviction and sentence, though he had preferred an appeal, the appellate court also confirmed the conviction entered and sentence imposed by the trial court as such. This revision is filed challenging the concurrent findings of conviction and sentence, on various grounds. It is the case of the prosecution that on 24/05/1997 at 5.30 p.m. when the Preventive Officer attached to Chelannur Range and party were on patrol duty through Kunnamangalam-Peruvattiparamala public road, they saw the accused coming with a black plastic can through the eastern side of the said road. On seeing the excise party, the accused tried to hide the plastic can. On examining the contents of the plastic can, it was found containing about 2 litres of illicit arrack. The accused was arrested from the place of occurrence. Thus, the accused had committed the offence punishable u/s 55(a) of the Abkari Act.

(2.) The learned counsel for the Revision petitioner canvassed two points in his arguments. The counsel firstly pointed out that the 'arrest memo' had not been prepared or produced so as to prove the alleged arrest of the Revision petitioner with contraband as alleged by the prosecution. Similarly, the evidence of P.Ws. 1 and 2 regarding the place of arrest is contradictory and the same is mutually destructive. Therefore, the arrest itself is suspicious and unbelievable as it is not proved beyond reasonable doubt.

(3.) Per contra, the learned Public Prosecutor submits that the arrest with contraband is proved by Exts. P1 to P3, which were prepared contemporaneously at the time of arrest. Therefore, absence of arrest memo is not fatal to the prosecution case. Secondly, there is a delay of one day in producing the contraband articles seized before the Magistrate court, and that delay is also fatal. These are the two points urged before me in this revision.