DAMODARAN C. Vs. STATION HOUSE OFFICER

JUDGEMENT

(1.) These appeals are filed by the 2nd and 1st accused respectively in SC No. 34/2003 on the file of the Additional Sessions Judge (Ad hoc I), Kasaragod. The appellants faced trial for an offence punishable under S.55(a) of the Abkari Act on the allegation that they were found in possession of 1532 bottles of Boss Whisky and 1344 bottles of Rummy Coconut Fenny, Indian made foreign liquors, at the property belongs to one A. K. Khalid, Chakkutal in Thalakkala village within the limits of Manjeshwar Police Station on 03/12/2000 at about 7.20 p.m against the provisions of the Abkari Act and thereby committed the offence alleged.

(2.) Prosecution examined five witnesses and relied on Exts. P1 to P6. After closing the evidence adduced by the prosecution, while questioning the appellants under S.313 of the Code of Criminal Procedure, the appellants have stated that they are innocent of the charge and the case was foisted against them by using certain abandoned bottles of foreign liquor. The 1st accused had further stated that he is not a person mentioned in Ext. P2 mahazar as Sudhakara Shetty. Ext. D1 ration card No. 2468005977 issued in the name of one Narayana Shetty, in which name of Sudhakara Shetty is also included in the house name of Meeyappadavu. Exts. P1 to P6 were also produced. No material object has been produced before the Court. The Trial Court by the impugned judgment, found the appellants guilty and sentenced them to undergo R.I for four years each and to pay a fine of Rs.One lakh each with default sentence of payment of fine, to undergo R.I for six months each. The above judgment is assailed in these appeals.

(3.) The learned counsel appearing for the appellants raised the following contentions in challenging the judgment of the Trial Court. Firstly, it is contended that the Trial Court had not appreciated the evidence properly while finding the appellants guilty of the charge as there is no legally acceptable evidence before the Court to prove that the appellants were found in possession of the alleged contraband articles at the time and place as stated by the prosecution. Secondly, it is contended that PW 2, the Sub Inspector of Police, had violated the provisions of the Abkari Act and the Kerala Excise Manual while seizing the contraband article and taking the samples and also producing both the contraband articles and the samples alleged to have been taken at the time of detection of the crime before the Court. Thirdly, the Trial Court had not followed the procedure for the trial of an abkari offence as the Court had not verified any of the records relating to seizure of the contraband articles and samples alleged to have been seized and also the alleged recovery of currency notes of Rs.9,000 and odd from the pocket of the 1st accused, the appellant in Crl A No. 812/2003 as the judgment of the Trial Court does not show production of any material before the Court either seized or produced before the Trial Court. Lastly, it is contended that the Trial Court had not considered the case set up by the appellants when they were questioned under S.313 of the Code as the case is foisted against them with some abandoned bottles of Indian made foreign liquor.