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Judgment
The appellant herein challenges the conviction and sentence against him under Section (2) of the Kerala Abkari Act ("the Act" for short) in S.C 194/2008 of the Court of Session, Kasaragod.
The prosecution case is that at about 5.30 p.m on 25.8.2005 at Manjeshwar, within the limits of the Kumbla Excise Range, the accused was found possessing 16.3 litres of arrack, contained in 163 packets of 100 ml capacity. The offence was detected by the Excise Inspector of the Kasaragod Excise Range who was having additional charge of Kumbla Excise Range at that time. He arrested the accused on the spot and seized the packets of arrack as per a mahazar. He produced the accused and the properties at the Excise Range Office, Kumbla, where he registered the crime and occurrence report. Later, investigation was taken over by the Excise Inspector of the Kumbla Excise Range, and he submitted final report also in
court. On committal, the case came up before the Court of
Session, from where it was made over to the learned Additional Sessions Judge (Adhoc) I, Kasaragod for trial and disposal.
The accused appeared before the trial court and pleaded not guilty to the charge framed against him under Section 8(2) of the Act. The prosecution examined five witnesses in the trial court, and proved Exts.P1 to P11 documents. There was no property to be identified during trial, because the properties had been by the time produced before the Assistant Commissioner of Excise for necessary procedure under Section 53A of the Act. The accused denied the incriminating circumstances, when examined under Section 313 Cr.P.C. He did not adduce any evidence in defence.
On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for four years, and to pay a fine of 1 lakh by judgment dated 28.02.2011. Aggrieved by the judgment of conviction, the accused has come up in appeal.
Of the five witnesses examined in the trial court, PW1 is the Excise Inspector, who detected the offence and PW5 is the Preventive Officer, who assisted PW1 in the process of detection. PW2 and PW3 examined as independent witnesses turned hostile. PW4 is the Excise Inspector of the Kumbla Excise Range, who investigated the case and submitted final report. PW2 and PW3 have in fact identified their signature in the detection mahazar. PW1 and PW5 have given consistent evidence proving the detection in this case. Their evidence is that during patrol, they saw the accused carrying a bundle and when the Excise Inspector examined it on suspicion, he found 163 packets of arrack. He arrested the accused on the spot, and the packets of arrack were seized as per a mahazar. The liquid contained in three packets was taken by him as sample and the sample was well packed and sealed at the spot of detection. The properties were produced in court without any delay. The chemical analysis report shows that on analysis the sample was detected as arrack. The remaining 160 packets of arrack were produced before the Assistant Commissioner of Excise for necessary action. Ext.P9 is the inventory prepared by the Assistant Commissioner of Excise, certified by the Judicial Magistrate having jurisdiction.
Ext.P9(a) photograph was also certified by the learned Magistrate. Thus I find that the Assistant Commissioner of Excise had well complied with the provisions of Section 53A of the Act. Ext.P9 inventory and Ext.P9 (a) photograph read along with the evidence of PW1 and PW5 will prove that 163 packets of arrack were seized by PW1 from the hands of the accused. Thus the offence under Section 8 (2) of the Act stands very well proved against him. Ext.P8 forwarding note contains the specimen of the seal affixed on the sample bottles. The accused is not entitled for the benefit of any infirmity in the prosecution case.
The sentence imposed by the trial court is rigorous imprisonment for four years. The age of the accused at the time of detection was 42 years. No other crime of similar nature is seen reported against him. On a consideration of all the relevant aspects, I find that the sentence can be reasonably reduced. The default sentence also can be reasonably by the court in appeal.
In the result, the conviction against the appellant under Section 8(2) of the Act in S.C No.194 of 2008 of the court below is confirmed, and the appeal is disposed of accordingly. However, the jail sentence imposed by the trial court is reduced to rigorous imprisonment for one and half (1 =) years. The fine sentence imposed by the court below is maintained, but the default sentence will stand reduced to rigorous imprisonment for three months. The appellant will get the benefit of set off as already ordered by the trial court.