MURALI Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal is preferred against the judgment of conviction and sentence dated 22.9.2004 made in SC 207/2003 on the files of the Additional Sessions Court (Adhoc)-II, Thoduzpua. Conviction was under Section 55 (g) of the Abkari Act.

(2.) When the appeal came up for hearing, the learned counsel appearing for the appellant submitted before this court that the appellant was falsely implicated in this case. Even though originally there were 4 accused, all the other accused were absconding. Admittedly the alleged seizure was from an area which was under the possession of the 2nd accused. The main incriminating aspect highlighted by the prosecution is his presence at the scene. The case of the appellant is that he happened to be therein, when an assembly was seen, he went therein and due to some animosity of somebody, he was arrayed as an accused and was taken into custody. It is the further submission made before this court that the sampling was not proper and the remaining wash was destroyed by the prosecution, which materially prejudiced the appellant and further the sample lifted from the so-called wash reached before the court only after 5 days, which is against the dictum laid down by this court in Raju v. State of Kerala [2012 KHC 877] . It is the further submission that there is nothing to show that actually the appellant was involved in any illegal act much less in distillation of arrack, which will invite an offence under Section 55 (g) of the Abkari Act.

(3.) I heard the learned Public Prosecutor, who submitted before this court that here is a case where 4 people trespassed into a forest area and distilled arrack in large scale. The seized barrels as well as the presence of wash will indicate that it was not a small scale distillation. The other accused were escaped to the forest and they never co-operated even with the trial. The subsequent conduct of the other accused will give an indication about their nature. Only because this appellant was nabbed by the detecting officers, he was available for the trial.