SAROJINI Vs. STATE OF KERALA AND ANR.

JUDGEMENT

(1.) This appeal is preferred against the judgment of conviction and sentence made in S.C.No.393/2003 on the files of the Court of Additional Sessions Judge, Fast Track Court -I, Alappzuha. The conviction is under Section 8(1) and (2) of the Abkari Act. The sentence is to undergo rigorous imprisonment for three months and to pay a fine of Rs. 1,00,000/- with default simple imprisonment for six months.

(2.) The appellant is a women. It is submitted by the learned counsel for the appellant that she is a widow. The facts of the case that on 26.05.2000 at about 12 p.m. on an information that arrack had been kept in the house of the appellant herein conducted a search and thereon seized 10 litres of illicit arrack in a can. The contraband was seized. The appellant was arrested and contraband as well as accused were taken to the office. Crime was registered. After investigation, case was charge sheeted. PWs 1 to 6 were examined. Exts.P1 to P6 were marked. MO1 was also identified. After appreciating the evidence, the court below convicted the accused and sentenced as stated above.

(3.) The learned counsel appearing for the appellant submitted that here is a case where there is no forwarding note marked before the trial court. It is also the submission that even though, as per the prosecution case, the detecting officer was a preventive officer, who is surely authorized by notification to act under Section 30, 31 and 34 but not authorized to act under Sections 40 and 41 of the Abkari Act. It is the submission that as per the mandate under Section 38 of the Abkari Act, he being only an abkari officer bound to either report the matter to his superior officer or to produce the contraband and the accused before an abkari inspector. In this case PW1, the detecting officer himself has registered the crime and produced the appellant before the Magistrate Court. It is also brought to the notice of this court that the contraband was actually produced before the court only on 30.5.2000. The delay is not explained by the witness. When the delay is not explained and as per the forwarding note, it was originally shown to the Magistrate on 26.5.2000 itself, but actually production of the contraband was only on 30.5.2000, it can be only said that tampering cannot be ruled out. Thus, on the above circumstances, it is submitted that the appellant is entitled for benefit of doubt.