JOSEPH Vs. STATE OF KERALA

JUDGEMENT

(1.) The accused in S.C. No. 146/2005 on the file of the Additional Sessions Court (Adhoc) -I, Kottayam is the appellant herein. The appellant was charge sheeted by the Excise Inspector, Pala Excise Range in Crime No. 12/2003 of that excise range under S. 55(g) of the Abkari Act. The case of the prosecution in nutshell was that on 5.9.2003, at about 6 p.m., the accused was found to be in possession of 50 litres of wash and 450 ml of arrack in his house with No. XI/58 of Pala Municipality in violation of the provisions of the Abkari Act and thereby he had committed the above said offence.

(2.) After investigation, final report was filed before the Judicial First Class Magistrate Court, Pala, where it was taken on file as C.P. No. 10/2005. After complying with the formalities, the learned Magistrate committed the case to the Sessions Court, Kottayam under S. 209 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). After committal, the Sessions Court took cognizance of the case as S.C. No. 146/2005 and the same was made over to the Additional Sessions Court (Adhoc) -I, Kottayam for disposal.

(3.) When the accused appeared before the court below, after hearing both sides, charge under S. 55(g) of the Abkari Act was framed and the same was read over and explained to him and he pleased not guilty. In order to prove the case of the prosecution, Pws 1 to 6 were examined and Exts.P1 to P11 and MO's 1 to 4 were marked on their side. After closure of the prosecution evidence, the accused was questioned under S. 313 of the Code and he denied all the incriminating circumstances brought against him in the prosecution evidence. He had further stated that no article was seized from his possession. In fact, he was running a finance business and one Kavumpurath Mani, who was a taxi driver, engaged in driving car for excise officials had taken a loan from him and when he did not pay the amount, there was some dispute arose between the accused and the said Mani regarding non payment of the amount borrowed and on account of the enmity, he had instigated the excise officials to fabricate a false case against him. Since evidence in this case did not warrant an acquittal under S. 232 of the Code, the accused was called upon to enter on his defence, but no defence evidence was adduced on his side. After considering the evidence on record, the court below found the appellant guilty under S. 55(g) of the Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for one year and also to pay a fine of ' one lakh, in default to undergo rigorous imprisonment for three months more. Set off was allowed for the period of detention already undergone under S. 428 of the Code. Aggrieved by the same, the present appeal has been preferred by the appellant, accused before the court below.