MATHAI Vs. STATE OF KERALA

JUDGEMENT

(1.) These appeals are preferred against the conviction and sentence in S.C. No. 352/2003 of Additional District and Sessions Judge (Adhoc), Fast Track-1, Pathanamthilta for offence punishable u/s. 55(a) and (g) of Abkari Act. The appellants are accused 1 to 3 in the above case and they were sentenced to undergo rigorous imprisonment for a period of 4 years and to pay a fine of 1 lakh in default, simple imprisonment for two years each for the offence punishable u/s. 55(a) of the Abkari Act, and to undergo rigorous imprisonment for two years and to pay fine of 1 lakh, in default, simple imprisonment for two years each for the offence punishable u/s. 55(g) of the Abkari Act. The facts necessary for the indictment were that on 13.8.1999 at 1 p.m., when the Excise Inspector and Party of Adoor Excise Range Office were on patrol duty, they got reliable information that the appellants were manufacturing illicit arrack in Chellakottu Veedu, House No. XI/454 of Ezhamkulam Panchayath. On the basis of that information, they arrived at the place of occurrence and detected the offence. After completing investigation, they laid charge before Judicial First Class Magistrate Court, Adoor, from where it was committed to Sessions Court, Pathanamthitta for trial.

(2.) To prove the offence, the prosecution examined PWs 1 to 5 and admitted Exts. P1 to P10 in evidence and marked Mos 1 to 4 series as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning u/s. 313 Cr.P.C. Appellants were heard u/s. 232 Cr.P.C. DW1 and DW2 were examined in support of their defence and Ext. D1 was marked while cross examination of PW1. The trial Court, after analysing the oral and documentary evidence, convicted the accused.

(3.) The learned counsel appearing for the appellants contended that the search and seizure were conducted by the Excise Inspector, violating the benevolent provisions of Code of Criminal Procedure. Two respectable independent witnesses of the locality had not participated in the search. Their presence is necessary, because the ownership and possession of the searched house is vested in another person. The offence was detected in a place where large number of people reside. In such a situation, presence of independent witnesses is necessary to prove search and seizure. There is no evidence to show that the house was in possession of the first accused (appellant in Crl.Appeal No. 115/2005). Actually, the house was in possession of one Markose, who was not arrayed as an accused in this case. There was no independent evidence to prove search and seizure.