PURUSHOTHAMAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE sole accused in SC No. 557 of 2000 on the file of the Additional District and Sessions Court Fast Track (Ad hoc II), Kozhikode is the appellant. The appellant faced trial for the offence punishable under S.55(a) of the Abkari Act.

(2.) THE prosecution case against the accused appellant herein was that on 15/11/1999 at 7 p.m. while PW 5, the Sub Inspector of Police, Kuttiady was engaged in checking the vehicles along with PW 1 and other police constables, he found the appellant alighting through the back door of a bus holding a plastic bag and that on examining the bag it was found that the bag contained three bottles of 375 ml. Bon brandy and one bottle of 375 ml. King George Premium Grape brandy. To prove the charge against the appellant, the prosecution examined PWs 1 to 6 and Exts. P1 to P10 as well as MOs 1 and 2. No oral or documentary evidence was adduced on the side of the defence. On closing the prosecution evidence, the accused was questioned under S.313 CrPC. The accused denied the allegations levelled against him. However, the Trial Court, relying on the evidence adduced by the prosecution, found the accused guilty under S.55(a) of the Abkari Act, convicted him thereunder and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of six months. The above conviction and sentence are challenged in this appeal.

(3.) LEARNED counsel appearing for the appellant has taken the following contentions: (i) the Trial Court went wrong in placing reliance on the evidence of PWs 5 and 6 to find the appellant guilty as there was no independent evidence to support the prosecution case, (ii) the Trial Court ought to have taken into account the fact that the contraband articles alleged to have been seized from the appellant and the samples were not sent to the Court as per the procedure prescribed under the provisions of the Abkari Act and the Kerala Excise Manual, (iii) the prosecution had not explained the delay in producing the contraband articles and the samples before the Court as chances of tampering with the contraband articles cannot be ruled out and (iv) the finding of the Trial Court that the appellant committed offence punishable under S.55(a) of the Abkari Act is not legally sustainable as the prosecution had not alleged and proved that the contraband articles found in the possession of the appellant were in connection with export, import, transport or transit as held by this Court in the decisions reported in Surendran v. Excise Inspector, 2004 KHC 72 : 2004 (1) KLT 404 and Sudhepan @ Aniyan v. State of Kerala, 2005 KHC 2088 : 2006 (1) KLT SN 72 : 2005 (2) KLD (Cri) 631.