MADHU M.N. Vs. STATE OF KERALA

JUDGEMENT

(1.) The sole accused in Sessions Case No.553 of 2006 on the file of the Court of Sessions Thalassery was found guilty vide judgement dated 24.10.2008 for an offence punishable under Section 55(a) of the Abkari Act, convicted thereunder and sentenced to undergo rigourous imprisonment for two years and to pay a fine of Rs.1,00,000/- with a default sentence of one year's rigourous imprisonment. Aggrieved by the conviction, the accused impugns the judgement in this appeal.

(2.) The prosecution case in brief is thus: PW4, the Sub Inspector of Police, Ulikkal Police Station was on routine patrol duty on 05.01.2005 when he got a reliable information about sale of illicit arrack in packets by the accused at the premises of his residential house. By about 6.45 PM, he saw the accused walking along a lane towards the north carrying a plastic sack. He was intercepted and on search, the sack carried by him had 80 packets of illicit arrack containing 100 ml. each. Sample was drawn in a bottle, labelled and sealed. Exhibit P1 mahazar was prepared. The balance contraband arrack was also sealed and labelled in the plastic bag. The accused was arrested vide Exhibit P2 arrest memo and Exhibit P4 inspection memo. After bringing the contraband along with the accused to the Police Station, Exhibit P5 F.I.R was registered. The contraband articles, along with the accused, were produced before the jurisdictional Magistrate. Exhibit P6 is the property list. Exhibit P7 forwarding note was also submitted before the Magistrate requesting the sample to be sent for analysis by the chemical examiner. Exhibit P8 chemical analysis report states that the sample contains ethyl alcohol. PWs 1 and 2 are independent witnesses who turned hostile. PW3 is a witness to Exhibit P3 scene mahazar.

(3.) The learned counsel appearing for the appellant argues that the prosecution case rests on the sole testimony of PW4. None of the officials who had accompanied the detecting officer were examined. PWs 1 and 2, the independent witnesses, turned hostile. The learned counsel also relies on the decision in Krishnan H v. State of Kerala [2015 (1) KHC 822], wherein this Court held that it is totally unsafe to rely on the testimony of the Excise Inspector alone for finding the accused guilty of a serious offence under Section 55(a) of the Abkari Act. The learned counsel also relies on the decision of the Hon'ble Supreme Court in Mohan Lal v. State of Punjab [2018 (4) KHC 387] to argue for the proposition that investigation by the detecting officer is not proper. The Supreme Court held thus: