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Judgment
The appellant herein challenges the conviction and
sentence against him under Section 8 (2) of the Kerala
Abkari Act (for short "the Act") in S.C 251/2010 of the
Court of Session, Thodupuzha.
The prosecution case is that, at about 6.00 p.m
on 30.03.2009, at the property of one Jaison in Chinnakanal,
the appellant was found selling arrack. The offence was
detected by the Sub Inspector of Police, Santhanpara. He
arrested the accused on the spot, and also seized a plastic
can containing two litres of arrack. A bottle of 180 ml
capacity with arrack and a glass used by the accused for
serving arrack were also seized by the Sub Inspector. On
body search of the accused, the Sub Inspector seized some
currency notes, and also a mobile phone. The accused and
the properties were produced at the Police Station without
any delay, where the Sub Inspector registered the F.I.R.
He conducted investigation and also submitted final report
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), Thodupuzha 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 P12
documents. Ext.X1 document was also proved at the
instance of the prosecution. The MO1 to MO5 properties
were also identified during trial. The accused denied the
incriminating circumstances when examined under Section
313 Cr.P.C, and projected a defence that nothing was in fact
seized from his possession, and that he was taken into
custody from his house. In defence, the accused examined
his mother as DW1. She stated that the accused was in fact
taken into custody from his house.
On an appreciation of the evidence, the trial court
found the accused guilty. On conviction, he was sentenced
to undergo rigorous imprisonment for six months, and to
pay a fine of 1 lakh by judgment dated 28.07.2011.
Aggrieved by the judgment of conviction, the accused has
come up in appeal.
On hearing both sides, and on a perusal of the
materials, I find that the prosecution has well proved the
offence in this case. PW4 is the Sub Inspector, who detected
the offence. He investigated the case and also submitted
final report in court. There is nothing to show that any sort
of prejudice was caused to the accused by the one man
show made by the Sub Inspector. PW2 and PW3 are the
independent witnesses, but they turned hostile. However,
they identified their signature in the detection mahazar and
also on the labels affixed on the properties. PW1 is the
Village Officer, who proved the Ext.P1 certificate. Of course,
his evidence does not assume any importance because it is
not material where exactly the accused was found
possessing arrack. The question is whether any quantity of
arrack was seized from his possession; whether it was at any
property or at his house. PW5 is the Clerk dealing with
properties in the Magistrate''s Court, and he proved the
Ext.X1 extract of the property register. The prosecution
brought the said extract in view of the contention raised by
the defence that the property list produced in court would
show that the plastic can containing arrack was not
labelled. That it was labelled when produced in court, is
proved by Ext.X1 document.
PW4 has given definite evidence proving the
arrest of the accused and the seizure of the MO1 plastic can
and the MO3 bottle containing arrack, from his possession.
He has also given evidence regarding the collection of
sample from the quantity of arrack. Ext.P10 chemical
analysis report shows that the liquid in the sample bottles
was identified as arrack on analysis. It stands well proved
that the samples were collected from the liquid contained in
the MO1 plastic can seized from the hands of the accused.
Thus the prosecution case stands proved that the accused
was found possessing two litres of arrack in the MO1 plastic
can. The accused is not entitled for the benefit of any
infirmity in this case, because everything was done in order
by the detecting officer. The property was produced in court
without any delay, and the forwarding note contains the
specimen seal affixed on the samples. So I find no reason for
interference in appeal. The appellant was tried along with
two other accused. The accused Nos.2 and 3 happened to
be arraigned on the basis of the statements given by the
appellant that he got the quantity of arrack from them.
Anyway, the accused Nos.2 and 3 were found not guilty,
and they were acquitted by the trial court. The age of the
accused at the time of arrest was 35 years. No other crime
of similar nature is seen reported against him. On a
consideration of all the relevant aspects including the
quantity of arrack, I find that the jail sentence in this case
can be reduced to the minimum possible in view of Section
354 (4) Cr.P.C .
In the result, the conviction against the appellant
under Section 8(2) of the Act in S.C No.251of 2010 of the
court below is confirmed, and the appeal is disposed of
accordingly. However, the jail sentence imposed by the
court below will stand modified and reduced to rigorous
imprisonment for three months. The fine sentence is
maintained.