MANTHAN S/O. KANIYAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE appellant, accused, in SC. No. 213/2002 on the file of the Additional Sessions Judge (Ad hoc) -II, Kalpetta, faced trial for an offence punishable under Section 55(a) of the Abkari Act. The allegation against the appellant was that he was found in possession of 17 packets of Karnataka made illicit arrack on 6.4.2001 near building No. T.P. -VII/105 at Kuniyil in Thrissilery amsom within the limits of Thirunelly Police Station and as the appellant was restrained by the local public, information was received by PW1, the Sub Inspector of Police, Thirunelly Police Station, came to the spot and arrested the appellant on preparing Ext.P1 arrest memo. On arresting the appellant, PW1 -the Sub Inspector of Police prepared Ext.P2 seizure mahazar and seized MOs 1 to 3 from the possession of the appellant. To prove the above case against the appellant, prosecution examined Pws 1 to 6 and relied on Exts.P1 to P7. MOs 1 to 3 were also produced. On closing the prosecution evidence, the appellant was questioned under Section 313 of the Code of Criminal Procedure. Denying the allegation of the prosecution, the appellant had stated that he is innocent and the articles seized from the appellant do not belong to him. However, relying on the prosecution evidence, the trial court found the appellant guilty under Section 55(a) of the Abkari Act and he was convicted thereunder and sentenced to undergo S.I for three years and also a fine of Rupees One Lakh with default sentence of fine, a further period of S.I for six months also ordered. The above conviction and sentence are assailed in the appeal.

(2.) SINCE the appeal is filed through the jail authorities and the appellant is not having his own counsel to argue the case, a member from the State brief panel has been appointed to argue the case for and on behalf of the appellant. This Court heard the learned Counsel appearing for the appellant as well as the learned Public Prosecutor. The counsel appearing for the appellant had taken two contentions before this Court attacking the judgment of the trial court. Firstly, the counsel submits that the trial court went wrong in believing the prosecution witnesses to find the appellant guilty of the charge. Secondly, the counsel submits that in the light of the judgments reported in Surendran v. : 2004(1)KLT404 and Sudhepan @ Aniyan v. State of Kerala, 2005 (2) KLD . 631the finding of the trial court that the appellant had committed the offence punishable under Section 55(a) of the Abkari Act is not legally sustainable.

(3.) THE question to be analysed in the light of the contentions raised by the counsel for the appellant is that whether the evidence adduced by the prosecution is sufficient to prove that the appellant was found in possession of the contraband article as the court had already found that there is no infirmity with the evidence of Pws 1 to 5, who had given evidence in support of the prosecution case. Hence, the first contention of the learned Counsel is not tenable. Secondly, the contention of the learned Counsel is that the prosecution had no case that the appellant was found in possession of contraband article in connection with exporting, transporting or transiting the contraband article as held in the judgments reported in Surenderan v. : 2004(1)KLT404 and Sudhepan @ Aniyan v. State of Kerala, 2005 (2) KLD Cri. 631. In this context, it has to be seen that, the prosecution case itself is that, the appellant was restrained by the local public on the day of the incident and the appellant was found in possession of MO1 bag and MO2 bottle of Karnataka made arrack. There was no case for the prosecution that he was transporting the above said contraband article from anywhere or he is in possession of the contraband article in connection with any of the actions, i.e., transporting, exporting or importing the same.