MAJEEDKUTTY Vs. EXCISE INSPECTOR

JUDGEMENT

(1.) The appellant was convicted by the Additional Sessions Court-III, Kollam, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1 lakh and, in default of payment of fine, to undergo simple imprisonment for six months. The conviction and sentence so passed by the court below are challenged in 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 3, the Excise Preventive Officer, Excise Range Office, Kollam, and his party were on patrol at Thazhampana Thahamukku in Thrikkovilvattom Village, at about 6.00 p.m. on 13.08.1997. While so, the appellant was seen coming from the opposite side carrying a plastic sack in his right hand. Seeing the excise party, the appellant attempted to flee away. But, he was stopped there by the excise party. On examining the plastic sack, 25 plastic covers each containing 100 ml. of liquid were found in it. PW 3 has taken two covers from them and opened them. On tasting and smelling the contents, it was revealed that the covers contained arrack. Therefore, the appellant was arrested then and there. PW 3 has taken the arrack contained in the opened two covers in a 375 ml. bottle as sample. The quantity of the same was about 180 ml. The sample so taken was sealed. The remaining 23 plastic covers containing arrack and the empty two plastic covers were put into the plastic sack and sealed that sack. The sealed sample and the sealed sack were seized by PW 3 under Ext. P1 Seizure Mahazar in the presence of witnesses. A sum of Rs. 20 was also found in the possession of the appellant and the same was also seized by the excise party. PW 3 has produced the appellant, contraband items seized and the records before PW 4, the Excise Inspector. PW 4 registered Crime No. 99 of 1997 of that Range Office in respect of the occurrence. Ext. P2 is the Crime and Occurrence Report thus prepared by PW 4. He has produced the appellant, properties and the records before the court on the next day. He has also submitted a requisition before the court for subjecting the sample to Chemical Analysis. PW 5, the Excise Inspector, has conducted the investigation of the case. He has questioned the witnesses and recorded their statements. He has completed the investigation and submitted the Final Report before the Judicial First Class Magistrate's Court-II, Kollam.

(3.) The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Kollam and, from there, it was made over to the Additional Sessions Court-El, Kollam. The court below framed a charge against the appellant alleging the offences under Section 55(a) and (i) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined P.Ws. 1 to 5 and marked Exts. P1 to P3 and M.O. 1 to M.O. 3 series on their side. The appellant denied all the incriminating circumstances shown against him. The defence has not adduced any evidence. The court below, after considering the matter, relying on the evidence adduced by the prosecution, found the appellant guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder. He was found not guilty of the offence under Section 55(i) of the Abkari Act. He was heard on the question of sentence and imposed the sentence on him.