BHASKARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The accused in Sessions Case No. 46 of 2002 of the Additional Sessions Court (Ad hoc) II, Kozhikode who stands convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for 1 1/2 years and to pay fine of Rs. 1,00,000, in default, to undergo rigorous imprisonment for six months, has come up in appeal. On getting reliable information that illicit arrack was being kept by the appellant in his possession at his house, P.W.1, Preventive Officer of the Quilandy Excise Range and party searched the house of the appellant at 1.00 p.m. on 15-10-1997. The appellant was present at the house. In the search, M.O.I Can containing 1 1/2 litres of arrack was seized from the kitchen of the house. The appellant was placed under arrest. Samples were drawn. On reaching the Excise Office, Exhibit P-5 occurrence report was prepared. The appellant along with the properties were produced before the Court on the very next day through Exhibit P-7 property list. A forwarding note, the copy of which is Exhibit P-8, was also filed. The sample of the contraband was subjected to chemical analysis and Exhibit P-9 certificate of chemical analysis was received, which states that the sample analyzed contained 37.27% by volume of ethyl alcohol. Consequently, the appellant was charge-sheeted for the offence under Section 55(a) of the Abkari Act.

(2.) On the side of the prosecution, P.Ws. 1 to 4 were examined and Exhibits P-1 to P-12 were marked. No defence evidence was adduced. The court below found me appellant guilty of the offence under Section 55(a) of the Abkari Act, convicted him thereunder and sentenced him as aforesaid.

(3.) The learned counsel for the appellant Sri P.V. Kunhikrishnan argued that an offence under Section 55(a) will not lie in a case like this as there is no case for the prosecution that the contraband was possessed by the appellant in the course of any export, import, or transport. Further, according to the learned counsel for the appellant, an offence under Section 58 of the Abkari Act also will not lie as there was no conscious possession of the contraband, with the knowledge that it was unlawfully manufactured.