Santhosh Nair, Mohanan and Suresh Samuel vs Kerala State

S. Siri Jagan, J.—The petitioners are the accused in S.C. No. 150/1999 before the Additional Assistant Sessions Judge, North Paravoor. They were prosecuted for an offence u/s 55(a) of the Abkari Act. The prosecution case as seen from the judgment of the Assistant Sessions Judge is as follows:

The third accused is the owner of the lorry, KL4-A/4784. He had filled up 2300 litres of illicit spirit in the concealed tank of the said lorry and entrusted the same with the accused Nos. 1 and 2. The accused No. 1 was the driver and the accused No. 2 was helper. They were transporting illicit liquor. The said lorry was seized by Excise party on 4.2.1998 at 3 p.m. on the National Highway-47 at Idappaly South Village of Kanayannur Taluk and thereby the accused have committed the offence u/s 55(a) of the Abkari Act.

The prosecution examined PWs 1 to 9 and marked Exts. P1 to P12. The defence did not adduce any evidence. On the basis of the evidence adduced by the prosecution, the Assistant Sessions Judge convicted the petitioners u/s 55(a) of the Abkari Act and sentenced them to undergo simple imprisonment for 5 years and to pay fine of Rs. 2 lakhs with a default sentence of simple imprisonment for one year. The petitioners filed Crl. A. No. 677/2001 before the Additional Sessions Judge, North Paravur, who dismissed the same confirming the conviction and sentence. The petitioners are challenging the judgments of the courts below.

When the matter was taken up for hearing, the counsel for the petitioners was absent. Therefore, I was constrained to consider the case after hearing the arguments of the learned Public Prosecutor and perusing the lower court records as well as the judgments of the courts below.

In the revision petition, the petitioners have raised the following points:

(A) Whether there is any conclusive proof to show that the accused No. 3 is the owner in possession of lorry bearing registration No. KL/4A-4784.

(B) Whether there is any evidence to show that accused Nos. 1 and 2 are the employees of accused No. 3.

(C) Whether there is any evidence to show that the complainant had complied with the revision of the Abkari Act in the sampling and forwarding the sample for analysis.

(D) Whether the prosecution succeeded in proving the allegation against the accused beyond the shadow of reasonable doubt.

PW5 has given evidence to the effect that he sold the lorry in question to one Biju Joseph. The said Biju Joseph was examined as PW6, who gave evidence to the effect that he sold the lorry to the third accused, who is the 3rd petitioner herein, and he has also identified the 3rd accused in the box as the person to whom he sold the vehicle. The agreement by which the sale was effected was also marked as Ext.P5. PW7, a witness to the said agreement, gave evidence to the effect that he affixed his signature as a witness to the agreement. As such, the prosecution has succeeded in proving that the third accused was the owner of the lorry at the time of seizure.

PW1, the Circle Inspector of Excise, Enforcement and Narcotic Special Squad, Ernakulam, seized the vehicle with the spirit and also arrested accused nos. 1 and 2, who were the driver and cleaner of the vehicle. He has identified them in the court also. PW2, the Excise Inspector of Enforcement and Narcotic Special Squad, Ernakulam, who accompanied PW1 during the seizure and arrest, also identified accused nos. 1 and 2 in the dock as the persons who were the driver and helper in the lorry and were arrested. Of course, PW3, the Manager of Rock Rose Hotel, Palarivattom, who was a witness to the seizure of spirit from the lorry, while giving evidence regarding the seizure of the same from the lorry, failed to identify the accused persons in court. PW4, the mahazar witness, also failed to identify the accused. But, still, the evidence of PWs 1 and 2 are sufficient to prove that accused nos. 1 and 2 were the driver and helper in the lorry, arrested by PW1. Even assuming that the prosecution has failed to prove that the accused nos. 1 and 2 are the employees of the third accused, they were arrested with the spirit in the lorry, which was being driven by the 1st accused in which the 2nd accused was the cleaner.

There was ample evidence to prove the sampling and forwarding of the sample for chemical analysis. The chemical analysis report has been marked as Ext.P9 also, which proves that the seized material is ethyl alcohol. Ext.P8 is the requisition letter issued to the Chemical Examiner seeking chemical examination. Therefore, I do not find any illegality in the sampling and forwarding of the sample for chemical analysis. In view of the above, I am satisfied that the prosecution has succeeded in proving the guilt of the petitioner beyond any reasonable doubt. In any event, I do not find any perversity in the appreciation of evidence by the courts below.

In the above circumstances, I do not find any merit in this Criminal R.P. and accordingly, the same is dismissed.