THULASEEDHARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal is preferred by the accused against the conviction and sentence in S.C.No.142/1999 of Additional District & Sessions Judge (Adhoc) II, Kollam u/s.55(a) of the Abkari Act. The charge against the appellant is that on 17.6.1997 at 2 p.m., he was found in possession of 7800ml of illicit arrack (53 polythene bags each containing 150ml) in the tea shop of 1st accused bearing building No.KP.XIII/105(2) of Kadathoor muri, Kulesekharapuram village. The 1st accused was arrested by the Excise Inspector and the contraband articles were seized after preparing a mahazar. The 2nd accused is the owner of the building. Reaching at the Excise Office, he registered a crime and after completing investigation, the Excise Inspector, Karunagappally laid charge before Judicial First Class Magistrate, Karunagappally from there the case was committed to Sessions Court, Kollam. Subsequently, it was made over to Additional Sessions Judge - II,Kollam. The 2nd accused died during trial and the charge against him was abated.

(2.) In the trial Court, prosecution examined PW1 to PW4 and marked Exts.P1 to P7 as documentary evidence. MO1 was admitted as material object. During cross examination of PW1, Ext.D1 was marked. The incriminating circumstances brought out in evidence were denied by the accused while questioning him u/s.313 Cr.P.C. He did not adduce any defence evidence. The learned Additional Sessions Judge convicted Being aggrieved by that, the 1st accused the accused. preferred this appeal.

(3.) The learned counsel appearing for the appellant contended that no forwarding note was prepared in this case at the time of producing the sample before Court. As per Ext.P7, 150ml sample packet was received in the chemical examination lab. But, the evidence in Ext.P2 and P6 shows that only 130ml of arrack was seized from the house of the appellant. When there is no evidence to prove that 150ml was forwarded to chemical examiner's lab, it is presumed that the sample taken at the time of seizure was not reached before Court and therefore, the accused is entitled to get the benefit of doubt. I have heard the learned Public Prosecutor also.