K R ROSHY Vs. STATE OF KERALA

JUDGEMENT

(1.) Accused 1 to 3 in S.C. No. 86/1999 on the file of the Court of the Addl. Sessions Judge, Fast Track Court-I, Palakkad are the appellants. The offence alleged against the appellants and the 4th accused, who was discharged by this Court as per order dated 28-5-2002 in Crl. RP. No. 206/2000, is under Section 57A(1)(iii) of the Abkari Act. As per the prosecution case, on 15.4.1996 at about 3 p.m. while on the basis of the permit issued to the 1st appellant, who was the toddy shop contractor of Group Nos. III, XIII, XVI, XVIII and XXIX of Thrithala Range for the period 1996-1997, appellants 2 and 3 were transporting 400 litres of toddy in two plastic barrels of 200 litres each in the Mini Lorry KL 7B 745, the excise party stopped the vehicle and took the sample of toddy for examination and on chemical examination 8 milligram of chloral hydrate per one millilitre was found in the sample of the toddy, which, according to the prosecution, is a dangerous substance to human life. Before the Trial Court, the prosecution examined P.Ws.1 and 2 and Exts.P-1 to P-5 were marked. M.O.1 sample bottle was also marked. Neither any witness was examined nor any document marked on the side of the defence. While the appellants were questioned under Section 313 of the Code of Criminal Procedure, they denied their involvement in the offence as alleged by the prosecution. On considering both oral as well as documentary evidence adduced by the prosecution, the Trial Court found the appellants guilty of the offence under Section 57A(1)(iii) of the Abkari Act and they were convicted thereunder and sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs. 10,000/- each and in default to undergo simple imprisonment for 6 months each. Aggrieved by the above, the appellants have approached this Court by filing the appeal.

(2.) Learned counsel appearing for the appellants submits that the findings entered by the Trial Court are not based on any legal basis or evidence. Learned counsel also submits that the Trial Court misread the evidence of the Excise Officials who are the only witnesses examined on the side of the prosecution to prove the prosecution case and failed to appreciate the evidence in its true spirit. Further learned counsel submits that the charge under Section 57A(l)(iii) itself will not lie in the light of the evidence adduced in the case. It is also submitted that the Excise Officials had violated all the mandatory provisions with regard to the transmission of the sample to the Chemical Examiner.

(3.) Before considering the arguments of the learned counsel for the appellants, it is advantageous to consider Section 57A(1)(iii) of the Abkari Act, which reads as follows: