JAYACHANDRAN @ JAYAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 16.8.2004 in S.C.No.370 of 1999 of the court of Additional District and Sessions Judge (Adhoc) Court -I, Kollam, by which the appellants who are accused Nos.1 and 2 stand convicted and sentenced for the offence under Section 55(i) of the Kerala Abkari Act (for short the 'Act').

(2.) THE prosecution case is that on 13.5.1998 at about 6.10 p.m., the first accused was found selling arrack in T.S.No.85 of Kottiyam Range of which the second accused was the licensee and they were also found keeping in possession for sale of about 11.600 litres of arrack in 116 polythene covers of 100 ml. each in the said toddy shop. Thus, according to the prosecution, the accused had committed the offence punishable under Section 55(a) of the Act. On the basis of the above allegation, Crime No.185 of 1998 was registered in the Kottiyam Police Station for the said offence and on completing the investigation, a report was filed before the Judicial First Class Magistrate Court -II, Kollam based upon which C.P.No.45 of 1998 was instituted and the learned Magistrate by his proceedings dated 30.7.1999 committed the case to the Sessions Court wherein SC No.370 of 1999 was instituted and subsequently, the same was made over to the court of Principal Assistant Sessions Judge, Kollam and subsequently, transferred to the present trial court for disposal.

(3.) THUS , on the appearance of the accused, the learned Judge of the trial court after hearing the prosecution as well as the defence, framed a formal charge against the accused for the offence under Section 55(a) and (i) of the Act, which when read over and explained to the accused, they denied the same and pleaded not guilty which resulted in the further trial of the case during which the prosecution has examined Pws.1 to 4 and produced Exts.P1 to P4 and produced Mos.1 and 2. In this case, it is relevant to note that after Section 313 proceedings and after closing the evidence and when the case was posted for final hearing, on behalf of the prosecution, an application was filed to reopen the prosecution evidence, to receive additional witness list and to issue summons to the additional witness calling upon the witness to produce a document and rejecting the defence objection, the trial court allowed the said petition vide order dated 1.6.2004 in Crl.M.P.No.1938 of 2004. Thus, PW5 was examined as additional witness and marked Ext.P5. The second accused was further questioned under Section 313 of Cr.P.C. Thus, the memorandum of evidence in this case consists of the deposition of Pws.1 to 5, documents viz., Exts.P1 to P5 and material objects Mos.1 and 2. After considering the evidence and materials on record, the trial court has finally found that the accused are guilty for the offence punishable under Section 55(a) and (i) of the Act and accordingly, both of them are convicted thereunder. On such conviction, the appellants are sentenced to undergo rigorous imprisonment for six years and to pay fine of Rs.2 lakhs each under Section 55(i) of the Act and in default of payment of fine, the appellants/accused are directed to undergo simple imprisonment for a period of two years. Set off is allowed. No separate punishment is ordered for the offence punishable under Section 55(a) of the Act. It is the above conviction and sentence that are challenged in this appeal.