KRISHNAN H Vs. STATE

JUDGEMENT

(1.) The appellant was convicted by the Additional Sessions Court (Ad hoc) II, Kasaragod, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of 1 lakh and, in default of payment of fine, to undergo rigorous imprisonment for two months. Challenging the conviction and sentence passed by the court below, the appellant has preferred this appeal. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent.

(2.) The prosecution case is briefly stated as follows: PW 1, the Excise Inspector, Excise Circle Office, Hosdurg, and his party were on patrol at Chalingal in Chittari Village at about 11.00 a.m. on 04-11-1999. While so, the appellant was seen coming from the opposite side carrying a white jerrycan. Seeing the excise party, the appellant attempted to flee away. But, the excise party soon reached him and examined the five litre jerrycan carried by him when it was revealed that it contained about three litres of illicit arrack. Since the appellant had committed an offence under the Abkari Act, he was arrested by PW 1 then and there preparing Ext. P1 Arrest Memo. PW 1 had seized the jerrycan containing arrack under Ext. P2 Seizure Mahazar in the presence of witnesses. He had drawn about 300 ml. of arrack in a 375 ml. bottle as sample from the bulk contained in the jerrycan for the purpose of subjecting it to chemical analysis. The jerrycan containing arrack as well as the sample were sealed. Thereafter, PW 1 reached the Excise Circle Office, Hosdurg, with the appellant, contraband and the records. Subsequently, after 2.00 p.m. on me same day, the appellant, contraband and the records were handed over to PW 2, the Excise Inspector, Excise Range Office, Hosdurg. PW 2 had registered Crime No. 33 of 1999 of that Range Office in respect of the occurrence. Ext. P3 is the Crime and Occurrence Report thus prepared by PW 2. He had produced the appellant before the court. He had also produced the contraband including sample along with Ext. P4 List of Property and the Forwarding Note. Ext. P5 is a copy of that Forwarding Note. PW 4, the Village Officer, Chittari, had prepared Ext. P7 Scene Plan. PW 3, the Excise Inspector, Excise Range Office, Hosdurg, had taken over the investigation of the case on 30-06-2000. He had questioned the witnesses and recorded their statements. After completing the investigation, he had submitted the Final Report before the Judicial First Class Magistrate's Court-I, Hosdurg.

(3.) The learned Magistrate committed the case to the Court of Session, Kasaragod, and, from there, it was made over to the Assistant Sessions Court, Hosdurg. Later, the case was transferred to the Additional Sessions Court (Adhoc) II, Kasaragod. The court below framed a charge against the appellant alleging the offence under Section 55(a) of the Abkari Act. The appellant had pleaded not guilty of the charge. The prosecution examined PWs. 1 to 4 and marked Exts. P1 to P7 and MO1 on their side. The appellant was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances shown against him. The defence had examined DW 1. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him.