MURALEEDHARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 15.5.2003 in S.C.No.100/00 of the court of Additional District and Sessions Judge (Ad hoc), Fast Track -1, Manjeri, and the appellant is the sole accused in the above Sessions case and his grievance is that he is convicted and sentenced for the offences under Sections 58 and 8(1) of the Abkari Act.

(2.) THE prosecution case is that, at about 6.15 a.m. on 21.7.1998, the accused was found in possession of 4 ltrs. of illicit arrack in a black can having the capacity of 5 ltrs. and transported the same through the road on the northern side of Hotel Rivera in Kuttipuram Desom against the provisions of Kerala Abkari Act and therefore he had committed the offences punishable under Sections 58 and 8(1) of the Abkari Act. On the above allegation, Crime No.1/98 was registered in Tirur Excise Range and on completing the investigation, report was filed and consequently S.C.No.100/00 was instituted in the Sessions court, Manjeri, and eventually transferred the same to the above trial court for disposal. When the above case was pending before the court of Assistant Sessions Judge at Tirur, a formal charge was framed against the accused for the offences punishable under sections 55(a) and 8(1) of the Abkari Act, which when read over and explained to the accused, he denied the same. Thus when the accused appeared in the present trial court, the prosecution adduced its evidence by examining Pws.1 to 5 and producing Exts.P1 to P8 documents. M.O.1 can is identified as material object. The trial court finally found that the prosecution has succeeded in proving the allegation against the accused beyond reasonable doubt and accordingly he is found guilty for the charges framed against him and he is convicted thereunder. On such conviction, the accused is sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.1 lakh and in default, he is directed to undergo simple imprisonment for one year. It is the above finding and order of conviction and sentence that are challenged in this appeal.

(3.) IN the above case, the prosecution has examined altogether 5 witnesses, out of which, Pws.3 and 4 are independent witnesses, but they turned hostile towards the prosecution and Pws.1 and 2 are the official witnesses. As the independent witnesses turned hostile, the prosecution is very much constrained to depend upon the evidence of official witnesses who involved in the detection of the crime. Thus when Pws.1 and 2, who were then working as Excise Inspector and Excise Guard attached to Tirur Excise Range, when examined, deposed in favour of the prosecution. These witnesses were deposed fully in terms of the prosecution allegation and according to them, when they were on patrol duty on 21.7.1998 and when they reached in a road passing through the northern side of Hotel Rivera, at about 6.15 a.m., they found the accused coming from their opposite side carrying a can and on entertaining doubt, he was intercepted and on inspection of the can, which contain a liquid, by smelling and tasting identified it as illicit arrack and therefore the accused was arrested and the contraband article was seized, including the material objects. They have deposed about the sample taken from the contraband article and according to Pws.1 and 2, the entire proceedings were elaborately recorded in a mahazar prepared at the spot and the proceedings were witnessed by the independent witnesses. According to these witnesses, after completing the proceedings of the seizure of the contraband article, drawing of the sample and arrest of the accused, they returned to the Excise Range Office and prepared the occurrence report, property list, and produced the accused as well as the material objects before the court and during the course, forwarding note was also prepared for sending the samples for chemical analysis. Thus when PW1 was examined, Ext.P1 seizure mahazar, Ext.P2 arrest memo, Ext.P3 occurrence report, Ext.P4 property list and Ext.P5 forwarding note are marked through PW1 and he had also identified M.O.1. PW2 has also deposed in tune with the deposition of PW1. PW5 is the then Circle Inspector, Tirur, who undertook the investigation and during which, he had questioned the witnesses and on completing the investigation, he laid the charge. Thus when PW5 is examined, Exts.P6 and P7 which are respectively the contradictory portion of 161 statement of Pws.3 and 4 were marked through him. He had also identified Ext.P8 chemical analysis report. It is on the basis of the above evidence and materials, the trial court arrived into its own finding and convicted the appellant.