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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.