SURENDRAN S/O. MUHAMMEDKUNJU Vs. STATE OF KERALA

JUDGEMENT

(1.) AGGRIEVED by the judgment dated 07/07/2005 in S.C.No.858 of 2001 on the file of the court of the Additional District and Sessions Judge (Adhoc) -II, Kollam the accused therein preferred this appeal as he is convicted and sentenced for the offence punishable under Section 55(g) of the Abkari Act.

(2.) THE prosecution case is that on 19/4/1999 at about 11.40 A.M. the accused was found in possession of about 210 litres of wash in six 35 litres cannases and put into a furrow in the courtyard of Sunil Bhavanam, belonged to the accused and thereby the accused has committed the offence punishable under Section 55(g), 8(1) and (2) of the Abkari Act. During the trial of the case PWs.1 to 6 were examined and Exts.P1 to P4 were produced from the side of the prosecution and besides the above, MO.1 series and MO.2 material objects were identified and marked. The trial court accepting the prosecution evidence and found that their case has established and accordingly the accused is found guilty for the offence under Section 55(g) of the Abkari Act and he is convicted thereunder and on such conviction he is sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.1,00,000/ - in default of payment of fine, he is directed to undergo rigorous imprisonment for one more year. Set off is allowed. It is against the above finding and conviction and sentence this appeal is preferred.

(3.) OUT of six prosecution witnesses examined, Pws.4 and 5 are independent witnesses, who are attestors to Ext.P1 mahazar but they turned hostile. To prove the search and seizure in the present case, the prosecution very much relied upon the evidence of PWs.1 and 6 among which PW.1 is the preventive officer, who accompanied PW.6 the detecting officer. According to these witnesses, while they were on patrol duty, they got information that the accused was in possession and concealed wash in six can each having the capacity of 35 litres in the courtyard of the house of the accused and according to these witnesses, they proceeded to the scene of occurrence and when they reached the house namely Sunil Bhavanam seen locked and no one was present in the house and on watching the surrounding they detected loose soil on the courtyard on the Western side of the house and on removal of such soil, they detected six black cans each having capacity of 35 litres seen concealed in a pit. Thus, Cans were taken out of the pit and as the earth contains wash the same were seized and after taking sample the remaining liquid contained in the cans were destroyed. As the accused was not available at the spot according to Pws.1 and 6 he could not be arrested. The procedures adopted by PW.6 towards the seizure of the cans and drawing of sample, etc., are mentioned in the mahazar prepared then and there. According to these witnesses thereafter they came back to the Excise Range Office, Karunagapally and thereafter a crime was registered and by preparing a property list the sample as well as the MOs. were produced before the court and subsequently sample sent for chemical analysis and got the report. Thus, when PW.1 was examined Ext.P1 mahazar is marked through him and he had also identified MO.1 series of cannas and MO.2 sample bottle. The accused was arrested by PW.2, the then C.I. of Police, Karunagappally Excise Range and he had deposed that the accused was arrested from a place, near to his house. Another C.I. of Excise, examined as PW.3 is the official who verified the investigation and laid the charge. When PW.6 the detecting officer was examined Ext.P2 occurrence report, Ext.P3 property list and Ext.P4 Chemical analysis report were marked through him. It is on the basis of the above evidence and materials on record, the trial court found that the accused/appellant is guilty and thus convicted him.