SUNILKUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) As the above two appeals are arose out of one and same judgment and the above appeals are preferred at the instance of the different accused in the very same sessions case, and particularly when the question of facts and law are identical, those appeals are heard together and being disposed of by this common judgment.

(2.) The prosecution case is that on 27.08.1998 by 9 a.m. PW4 got telephonic information about the possession of spirit in two cannases and carrying it through the road leading to Nadackal Elam, Nadackal Cherri, Kalluvathukkal village and pursuant to such information, PW4 and party proceeded to the spot and on seeing them the accused two in numbers took heels by leaving the two cannases, which on inspection the content was identified as spirit which taken into custody as per mahazar and thus the accused two in numbers have committed the offence punishable under Section 55(a) of the Abkari Act. With the above allegation, Crime No.187/1998 was registered in the Parippally Police Station for the offence punishable under Section 55(a) of the Abkari Act.

(3.) On completing the investigation in the above crime, the police preferred report in the Judicial First Class Magistrate's Court, Paravoor and instituted C.P.No.77/1998. When the second accused appeared, the case was committed to the Sessions Court and accordingly, S.C.No.65/2000 was instituted, which was made over to the court of Additional District & Sessions Court (Adhoc) II, Kollam for trial. Subsequently the same was withdrawn and sent over to the present trial court for disposal. When the first accused subsequently surrendered and produced, C.P.No.50/1999 was instituted in the same committal court, and thus S.C.No.280/2000 was instituted in the Sessions Court. Thereafter, the same made over to the Additional District & Sessions Court and then to the present trial court. Thus when the first and second accused in the above crime appeared S.C.No.280/2000 instituted with respect to the first accused was clubbed with the original case as S.C.No.65/2000 and S.C.No.280/2000 strucked off. Thus S.C.No.65/2000 was proceeded upon which a formal charge for the offence punishable under Section 8(1) of the Abkari Act was framed against the accused and when the same read over and explained to the accused they denied it and pleaded not guilty. Consequently, the prosecution adduced their evidence by examining PWs.1 to 4 and producing Exts.P1 to P5. MOs.1, 2, 5, 3 and 4, which were respectively three sample bottles and two cannases were identified and marked as material objects. The trial court finally found that the evidence of PWs.2 to 4 established that both the accused abandoned the contraband and escaped on seeing the police party. Thus the accused have nexus with the contraband and they were in actual possession of the contraband at the time of detection and thus held that prosecution has succeeded in establishing its case and showed that accused numbers one and two were in actual possession of the contraband and thus they have committed the offence under Section 8(1) of the Abkari Act and accordingly they were convicted for the same. On such conviction, each of them are sentenced to undergo rigorous imprisonment for 4 years each and to pay a fine of Rs. 1,00,000/- each under Section 8(2) of the Abkari Act and in default of payment of fine, both the accused were directed to undergo simple imprisonment for one year each. Set off is allowed under Section 428 of the Code of Criminal Procedure. The above finding, order of conviction and sentence, challenged by the accused by filing separate appeals against the above judgment of the sessions case.