SABU Vs. STATE OF KERALA

JUDGEMENT

(1.) The appeal is filed against the judgment in S.C. No. 295 of 2000 on the file of the Additional Sessions court (Ad hoc-U), Thodupuzha. The appellant faced trial for the offence punishable under Section 55(a) read with Section 55(1) of the Abkari Act.

(2.) The prosecution case against the appellant accused was that on 7.6.1998 at about 11 O" Clock the appellant was found in possession of 15 bottles each containing 375 ml. of XXX Rum for the purpose of Sale, without any licence or permit as per the provisions of the Abkari Act. To prove the case against the appellant, the prosecution examined PW. 1 to 5 and produced Exts. P1 to P7 as well as Nos. 1 to 3. No oral or documentary evidence was adduced on the side of the defence. After closing the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. The appellant denied the allegations levelled against him and stated that on the day of the incident while he was waiting at the bus stop, the police came and arrested him and two others after enquiring about a packet that was kept by the side of Shop. The trial court, relying on the evidence adduced by the prosecution, found the appellant guilty under Section 55(a) read with Section 55(1) of the Abkari Act, convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of four years and to pay a fine Rs 1,00,000/-and default of payment of fine, to undergo simple imprisonment for a further period of three months. The appellant was also allowed the benefit under Section 428 Cr.P.C.

(3.) Leaned counsel appearing for the appellant has raised the following contentions: the finding of the trial court that the appellant committed offence punishable under Section 55(a) read with Section 55(1) of the Abkari Act is not legally sustainable in the light of the decisions of this Court reported in Surendran v. Excise Inspector, 2004 1 KerLT 404 and Sudhepano Aniyan v. State of Kerala,2005 2 KLD 631, (ii) the finding of the trial court is based only on the evidence of the official witness PWs 2,3 and 5 as the independent witness did not support the prosecution case, (iii) the finding of the trial court that the prosecution succeeded in proving the case against the appellant is not legally sustainable as PW.3 was not an officer empowered to detect or investigate thee crime registered against the appellant as per the provisions of the Abkari Act. To substantiable this contusion, learned Counsel for the appellant placed reliance on the Government notification G.O(P) No.69/967TD dated 29.3.1996 (S.R.O No.321/96) and (iv) the sample produced before the court would not prove that the appellant was found in possession of the contraband articles as there is no evidence with regard to the production of the residue of the contraband articles seized..