(1.) The appellant/accused stands convicted for the offence punishable under Section 55(a) of the Abkari Act and he is sentenced to undergo rigorous imprisonment for a term of 2 years and to pay a fine of Rs. 1 lakh with a default sentence to undergo rigorous imprisonment for six months. This is under challenge in this appeal.
(2.) According to the prosecution case, at about 9.55 a.m. on 20.6.1998, PWs. 1 and 2 while on patrol duty on getting information about the transaction of banned arrack, found the accused in suspicious circumstances on the public road carrying a big shopper (M.O. 1). He was apprehended and questioned. It was found that the big shopper (M.O. 1) in his hand contained 48 packets of Karnataka made arrack measuring 100 ml. each, which was banned in Kerala State. Accordingly the appellant/accused was arrested and Ext. P1 seizure mahazar was prepared. It is recorded therein that six packets from out of 48 were opened and poured in two bottles of 375 ml. The contents of three packets each were poured into each of the said bottles and were sealed. The entire things were seized and the seized articles were taken to the police station. Thereupon Ext. P3 FIR was registered and the accused was produced in court The said samples were sent to the Chemical Analysts. Ext. P6 is his report. It reveals that the sample contained ethyl alcohol 35.15% by volume. In the light of the evidence given by PW-5 Detecting Officer and on the basis of Ext. P1 seizure mahazar, Ext. P3 F.I.R. and Ext. P6 report of Chemical Analysis, the accused was found guilty of being in possession of 48 packets of 100 ml. arrack, which was seized as per Ext. Pl seizure mahazar. Accordingly, he was convicted and sentenced as mentioned above.
(3.) It is submitted that Ext. Pl seizure mahazar reveals that samples were taken in two bottles of 350 ml. capacity. This is also mentioned in Ext. P4 property list. It is submitted by the learned Counsel that in FIR the bottle is mentioned as of 375 ml. capacity. Therefore, it is not conclusively proved that the contraband alleged had been seized from the accused. It is further submitted that the alleged contraband had been produced before the court only on 24.6.1998 whereas the alleged occurrence was on 20.6.1998. There was a delay of 4 days. It is not properly explained. In support of this contention a decision reported in Narayani v. Excise Inspector 2002 (3) KLT 725 and Alex v. State 2003 (1) KLT SN 9 Case. No. 12 are relied on. Therefore, it is submitted that the appellant/accused is entitled for acquittal.