LAWS(KER)-2014-1-15

GOVINDAN Vs. STATE OF KERALA

Decided On January 09, 2014
GOVINDAN Appellant
V/S
STATE OF KERALA Respondents

JUDGEMENT

(1.) THE sole accused in S.C.No.74/03 of the court of Additional District and Sessions Judge (Ad hoc) Fast Track court -1, Manjeri, is the appellant as he is aggrieved by the judgment dated 7.7.2003 in the above case, since he is convicted and sentenced for the offence under sections 55 (a) and 8(1) of the Abkari Act.

(2.) THE prosecution case is that at about 4 p.m. on 14.5.1999, the accused was found in possession of 4.75 ltrs of illicit arrack in a white can having 5 ltr. capacity at Vettem in contravention of the provisions of the Abkari Act and therefore he has committed the offence punishable under sections 55(a) and 8(1) of the Abkari Act. With the above allegation, Crime No.2/99 was registered in the Excise Range Office, Tirur, and on completing the investigation, a report was filed, based upon which, C.P.No.53/00 was instituted in the court of Judicial First Class Magistrate -Tirur, and the learned Magistrate subsequently committed the case to the Sessions court, wherein S.C.No.74/01 is instituted. Initially, when the case was made over to the court of Assistant Sessions Judge at Tirur and when the accused appeared in that court, a formal charge was framed against him for the offence punishable under sections 55(a) and 8(1) of the Abkari Act and he denied the said charge when the same read over and explained to him. Thereafter, the case was withdrawn from that court and transferred to the present trial court for disposal. Thus when the accused appeared, the prosecution adduced its evidence by examining Pws.1 to 7 and producing Exts.P1 to P8 documents. M.O.1 plastic can is also identified as material objects. The trial court finally found that the accused is found guilty under the above charge and he is convicted thereunder. On such conviction, the appellant/accused is sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.1 lakh and on default he is directed to undergo simple imprisonment for 1 year. It is the above finding and order of conviction that are challenged in this appeal.

(3.) PWS .1 and 2 are the officials who involved in the detection of the crime and seizure of the contraband article and arrest of the accused. Besides, Pws.1 and 2, the prosecution has also examined Pws.3 and 6, the independent witnesses to prove the occurrence, but PW3 turned hostile towards the prosecution. Pws.1 and 2, who are respectively the then Excise Inspector and Excise Guard attached to Tirur Excise Range, had deposed fully in terms of the prosecution allegation. According to these witnesses, while they were on patrol duty around Vettem, they found the accused holding M.O.1 can in a path way, passing through a coconut garden on the eastern side of the house of one Govindan and on seeing the party, the accused got perplexed and tried to escape, but he was intercepted and M.O.1 can was inspected and found a liquid, which is identified as illicit arrack by smelling and tasting. Thus according to these witnesses, the accused was arrested then and there, and the contraband article was seized and samples were drawn from the illicit arrack contained in the can. The total quantity that contained in M.O.1 can was 4.750 ltr. of arrack. According to these witnesses, the entire proceedings recorded in a mahazar prepared at the spot and the proceedings towards drawing of the sample and arrest of the accused are recorded in the mahazar. According to these witnesses, on completing the proceedings, they returned to the Excise Range Office and entrusted the accused, the contraband article, the samples and the records with the Range Officer in that excise range. Thus when PW1 is examined, Ext.P1 arrest memo, Ext.P2 seizure mahazar and Ext.P3 occurrence report are marked through him. As I indicated earlier, PW3 -the independent witnesses examined in this case turned hostile, and thus the contradictory portion of his 161 statement is marked as Ext.P4. PW4 is the then Range Officer of Tirur Excise Range who received the material objects, records along with the accused and according to him, thereafter he prepared an occurrence report and forwarding note to send the sample for chemical analysis and also prepared thondi list to produce the entire material objects and samples before court, and thus obtained a chemical analysis report. Thus when PW4 is examined, Ext.P5 occurrence report, Ext.P6 forwarding note and Ext.P7 thondi list are marked through him. PW5 is the Officer who undertook the investigation and finally laid the charge. When PW5 is examined, Ext.P8 chemical analysis report is marked through him. PW6 is another independent witness, examined in this case to prove the seizure of the contraband article from the possession of the accused. When PW6 is examined, he deposed fully in terms of the prosecution allegation and he had admitted his signature in Ext.P2 seizure mahazar. Further, the investigation in the present case was conducted by PW7 and when he was examined, Ext.P4 contradiction was put to him. It was PW5 who finally laid the charge. It is on the basis of the above evidence and materials, the trial court found the accused as guilty and sentenced him.