JOSHIMON, S/O. DEVASSIA Vs. STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM AND OTHERS

JUDGEMENT

(1.) This appeal is preferred challenging the judgment of conviction in S.C.No.205/2002 on the files of the Court of Additional Sessions Judge ( Adhoc) III, Kasargod. The conviction is under Section 55(a) of the Abkari Act. The sentence is to undergo simple imprisonment for one year and to pay a fine of Rs. 1,00,000/- with default simple imprisonment for six months. The prosecution case in a nut shell is that on 27.11.2000 at about 1.30 p.m., the accused was found in possession of 21 packets of arrack at a place called Bethalam in Bandadukka village and thereby committed the offence. The prosecution altogether examined four witnesses and Exts.P1 to P7 marked. MO1 to MO3 were also identified.

(2.) When the appeal came up for hearing, the learned counsel appearing for the appellant submitted before this court that here is a case where the detection was by a preventive officer. Surely he is an officer authorized under Section 31 and 34 of the Abkari Act to detect an offence under the Abkari Act, but he is not an officer authorized under Section 40, 41 or 5(A) of the Abkari Act. It is also the submission that under such circumstances when there is nothing to show that he had complied with the statutory requirement under Section 38 of the Abkari Act, the appellant is entitled for benefit of doubt.

(3.) Another point raised before this court is that as per the seizure mahazar, there were 25 packets of arrack but only 18 packets and 3 plastic covers were produced before the court. It is the submission that no independent witnesses supported the prosecution and when there is violation of Section 38 of the Abkari Act, the appellant is entitled for benefit of doubt.