Ampi vs State of Kerala

N.K. Balakrishnan, J.—The appellant was convicted by Addl. Sessions Judge Fast Track (Adhoc-II), Alappuzha for offence punishable under Sec. 55(a) of Abkari Act and he was sentenced to undergo R.I. for one year and to pay Rs.1 lakh as fine and in default to undergo R.I. for 6 months. The 2nd accused therein was acquitted by the learned Sessions Judge.

The case of the prosecution is that on 18.5.2000 at about 5.30 PM while PW1, the Excise Inspector and his subordinates were on patrol duty, the accused was found carrying a plastic can containing about 2 liters of arrack. As the appellant was found jittering he was intercepted. When the plastic can was examined it was found to contain 2 liters of liquid, which was smelt and tasted. It was found to be liquor. He was, therefore, arrested then and there. From out of the liquor 200ml was taken in a bottle of 375ml as sample. It was sealed and labeled in the presence of the witnesses. Label was signed by the accused. The plastic can was also sealed and labeled. The accused, arrest memo and other properties along with remand report were produced before the learned Magistrate on the same day. Chemical examiner''s report would show that the liquid contained 92.79% by volume of ethyl alcohol. It was certified to be rectified spirit.

PW1 to PW5 were examined and Exts.P1 to P4 were marked. MO1 was identified and marked. The trial court after appreciating the evidence accepted the case of the prosecution and thus the appellant was convicted and sentenced as mentioned above.

Learned counsel for the appellant submits that court below has not appreciated the evidence correctly. There was a delay of 6 days in producing the properties before the court. Copy of the forwarding note was not marked. The independent witnesses did not support the prosecution. All these aspects should have been considered by the learned trial judge to hold that the prosecution case is unacceptable. This submission is resisted by the learned Public Prosecutor. It is pointed out by the learned Public Prosecutor that the accused was produced before the learned Magistrate on the very same day. The remand report would show that all the properties were produced on the same day; perhaps the properties must have been returned. Whatever that be, seizure of the contraband from the possession of the accused was duly reported on the very same day. Besides, the arrest memo and notice given to the wife of the accused were also produced along with the remand report. The seizure mahazar also reached the court on the same day. The seal affixed on the sample bottle tallied with the sample seal provided. Therefore, it cannot be said that the sampling or labeling was not done correctly. The seizure of the contraband was reported on the same day. Therefore, I find no merit in the contention advanced by the accused that there was unexplained delay in forwarding the property to the court. Since the sample was in sealed condition, the argument to the contrary is found unacceptable. As stated earlier Ext.P3 shows that what was possessed by the accused was actually rectified spirit. There is no case for the appellant that he was entitled to possess the same. There was also no case that he procures the liquor from a licensed vendor. The evidence given by PW1 was corroborated by PW2. It was rightly accepted by the court below. The conviction is thus confirmed.

Learned counsel for the appellant submits that the petitioner is having so many ailments and that he is the sole bread winner of the family. There is also no bad antecedents. The prosecution has no case that there was any previous conviction or that he was involved in similar cases subsequent to this case. Considering all the aspects, the learned counsel for the appellant submits that some leniency may be shown to him. I find that the sentence can be modified to a certain extent.

In the result, this Crl. A. is disposed of as stated below :-

The conviction of the appellant for the offence under Sec. 55(a) of the Abkari Act is confirmed. In supersession of the sentence awarded by the trial court, the appellant is sentenced to under R.I. for 3 months and to pay Rs.1 lakh as fine and in default to undergo R.I. for three months.