UNNI S/O. KUNJUKUNJU Vs. STATE OF KERALA

JUDGEMENT

(1.) THE above appeal is directed against the judgment dated 19/12/2006 in S.C.No.262 of 2002 of the court of the Additional Sessions Judge (Abkari), Kottarakkara as the appellant, who is the accused in the above Sessions case, is aggrieved by his conviction and sentence imposed on him for the offence under Section 55(a) of the Abkari Act.

(2.) THE prosecution allegation is that, on 13/10/1998 at about 11.30 A.M. the first accused was found in possession of a glass tumbler and A2/the appellant herein was found in possession of 9 litres of arrack in a 10 litre black Can for sale, in the coconut garden owned by one Sreenivasan and thus the accused has committed the offence punishable under Section 55(a) and (i) of the Abkari Act. On the above allegation, Crime No.280 of 1998 was registered in the Ezhukone Police Station and on completing the investigation a report was filed in the Judicial First Class Magistrate Court -I, Kottarakkara and the learned Magistrate by his order dated 09/10/2000 committed the case to the Sessions Court where S.C.No.262 of 2002 was instituted and eventually the case was transferred to the present trial court for disposal. When the accused two in numbers appeared before the trial court, considering the argument of the prosecution as well as the defence, a formal charge was framed against them for the offence punishable under Section 55(a) & (i) of the Abkari Act and the accused denied the charge when the same was read over and explained to them. Resultantly the trial was proceeded further, during which PWs.1 to 5 were examined and Exts.P1 to P5 were produced from the side of the prosecution and MO.1 Can was identified as material objects. Towards the conclusion of the trial, the learned Judge of the trial court has found that the prosecution has succeeded to prove the case under Section 55 (a) of the Abkari Act against the second accused and there is no evidence to show that A2 conducted sale of arrack. As there is no evidence to connect A1 to the offence alleged, A1 found not guilty of the offence under Section 55(a) & (i) of the Abkari Act and he is accordingly acquitted under Section 235 of Cr.P.C. Whereas A2 is found guilty under Section 55(a) and he is convicted thereunder, but he is acquitted for the offence under Section 55(i) of the Abkari Act. On such conviction, A2 - the present appellant is sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.1,00,000/ - and in default of payment of fine, he is directed to undergo rigorous imprisonment for three more months. Set off is allowed under Section 428 of Cr.P.C. Challenging the above finding and order of conviction and sentence the second accused therein preferred this appeal.

(3.) THOUGH altogether 5 witnesses were examined to prove the occurrence and the seizure of the contraband article and arrest of the accused, the prosecution was constrained to rely upon the evidence of PWs.3 and 4 -the official witnesses since two independent witnesses, who were examined as PWs.1 and 2 turned hostile. Thus, when PWs.3 and 4 were examined they have deposed that in pursuant to the information received by PW.5 on 13/10/1998 that the appellant and his brother first accused engaged in the sale of arrack in the property owned by Sreenivasan they proceeded to the scene of occurrence and on reaching there they found the accused standing in the above property and at that time A2 was holding MO.1 jerry Can and A1 was with a drinking glass. According to Pws.3 and 4 on seeing them the first accused ran away with the glass tumbler but A2 before escaping from the scene of occurrence was intercepted with MO.1 jerry can. Thus on inspection of the jerry Can in the presence of the witnesses, the content therein identified as arrack by testing and smelling. The total quantity of MO.1 Can content was 9 litres of arrack. So, according to PWs.3 and 5, 200 ml. of samples were drawn from the same and thereafter the samples as well as the residue with the Can were seized as per mahazar and A2 was arrested then and there. According to PWs.3 and