APPU Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal is directed against the judgment of conviction passed by the Court of II Additional Sessions Judge, Thodupuzha in S.C. No. 330 of 2013. The appellant herein was the sole accused therein and he was tried for the offence punishable under Sec. 55(g) of the Abkari Act. He was convicted and sentenced to undergo simple imprisonment for one year and to pay fine of Rs. 1,00,000/ -. In default of payment of fine he was ordered to undergo simple imprisonment for three months. The case of the prosecution was that on 18.10.2012 on obtaining a secret information regarding the manufacturing of illicit liquor in the forest area near Kattamudi Tribal Settlement Colony in Mannamkandam Village PW3 along with his party went inside the forest area and found the accused in possession of 85 litres of wash and the implements for illicit preparation of arrack. Huge quantity of wash was found kept in two barrels and after taking a sample of wash from one of the barrels the balance of wash were destroyed on spot. The sample and a 100 litre capacity of blue colour barrel marked as 'A', 30 litre capacity of Aluminium pot marked as 'B', 20 litre capacity of Aluminium vessel marked as 'C', Illichatty and a steal basin having capacity of 1 1/2 litre marked as 'E' (MO1 to MO5) were also seized from the spot under Ext.P1 mahazar. Under Ext.P5 arrest memo the appellant was arrested from the spot. The appellant along with the articles seized were taken to the Excise Range Office and Ext.P4 crime and occurrence report was registered. Under Ext.P8 forwarding note the sample taken from one of the barrels was sent for chemical analysis. Ext.P9 chemical analysis report was obtained. After completing the investigation a final report was laid before the Court of Judicial First Class Magistrate, Adimali. The learned Magistrate committed the case to the Court of Session, Thodupuzha and from there it was made over to the Court of II Additional Sessions Judge, Thodupuzha for trial and disposal. The appellant/accused appeared before the court and after complying with the mandatory procedures charge under Sec. 55(g) of the Abkari Act (for short 'the Act') was framed and it was read over and explained to him. The appellant/accused pleaded not guilty and claimed to be tried. To prove the charge against the appellant/accused prosecution has examined PWs 1 to 4 and got marked Exts.P1 to P10 besides identifying MOs 1 to 5. After the closure of the evidence of the prosecution the appellant/accused was questioned under Sec. 313, Cr.P.C. and he denied all the incriminating circumstances put to him. Finding that the appellant/accused was not entitled to get an acquittal under Sec. 232 Cr.P.C. he was called upon to enter on his defence. However, he had not adduced any evidence in defence. After appreciating the evidence on record and hearing the arguments on both sides the trial court found that prosecution has succeeded in establishing the guilt of the accused under Sec. 55(g) of the Act and consequently found him guilty thereunder. It was in the said circumstances that he was convicted and sentenced as aforesaid. Hence, this appeal.

(2.) I have heard Advocate Vipin Narayan appearing for the appellant on State Brief and also the learned Public Prosecutor.

(3.) The learned counsel for the appellant contended that the mandatory statutory provisions were not at all complied with in this case. It is submitted that the evidence on record would reveal that the articles allegedly seized from the spot were not at all sealed and labelled. It is also contended that though PW3 deposed that the sample taken was sealed and labelled he had not adduced any evidence in respect of the same. That apart, it is contended that the evidence on record would reveal that the entire residue of wash in the barrels was destroyed without complying with the statutory mandatory provisions under Sec. 53(A) of the Act. It is further submitted that no inventory was prepared, photographs were not taken and no certificate as contemplated under the provisions were obtained from the learned Magistrate and it was without following such mandatory procedures that the entire residue was destroyed. In short, according to the learned counsel for the appellant, there was absolute absence of any evidence to arrive at the guilt of the appellant. It is further contended that the trial court without considering those crucial aspects, relying on the evidence of PW3 and also Ext.P9 chemical examination report, arrived at the finding that the prosecution has succeeded in establishing the guilt of the accused and consequently convicted him and sentenced as aforesaid. In such circumstances, it is contended that the judgment of conviction is liable to be interfered with. Per contra, the learned Public Prosecutor contended that the trial court has rightly relied on Ext.P9 chemical examination report and the evidence of PW3. It is further contended that no legal infirmity could be attributed in the matter of seizure of MOs 1 to 5. The evidence of PW3 would reveal that MOs 1 to 5 were seized from the spot inside the forest area and merely because the entire residue of wash, after taking the sample, was destroyed that by itself is no reason for the appellant to claim for an acquittal. In short, it is contended that the conviction was entered against the appellant based on the evidence on record and no ground whatsoever was made out by the appellant for interfering with the judgment of conviction.