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Judgment
The appellant herein is the sole accused in S.C
374/2010 of the Court of Session, Manjeri. He faced
prosecution before the court below on the allegation that at
about 5.45 p.m on 21.9.2007 at Pulpatta within the limits
of the Manjeri Excise Range, the accused was found
possessing 2.250 litres of arrack in a can of 5 litres
capacity. The offence was detected by the Excise Inspector
of the Manjeri Excise Range during his usual patrol duty.
The prosecution case is that during patrol, the
Excise Inspector saw the accused carrying a plastic can.
When he examined the plastic can on suspicion, it was
found containing some quantity of arrack. By taste and
odour, he identified the liquid therein as arrack. The
accused was arrested on the spot, and the quantity of
arrack was seized as per a detection mahazar. He
produced the accused and the properties at the Excise
Range Office without any delay, where he registered the
crime and occurrence report. Later, another Excise Inspector took over investigation and he 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, Manjeri 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 Kerala Abkari Act (''the Act'' for short).
The prosecution examined four witnesses in the trial court
and proved Exts.P1 to P7 documents. The MO1 plastic can
containing arrack was also identified during trial. The
accused denied the incriminating circumstances, when
examined under Section 313 Cr.P.C. He examined a witness
on his side as DW1. The evidence of DW1 is that the
accused was in fact taken into custody by the Excise people
at his house and at that time nothing was seized from him.
Thus, practically, the evidence given by DW1 is a negative
evidence.
On an appreciation of the evidence adduced by
the prosecution, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous
imprisonment for three months and to pay a fine of 1 lakh
by judgment dated 22.12.2010. Aggrieved by the judgment
of conviction, the accused has come up in appeal.
When this appeal came up for hearing, the
learned counsel for the appellant submitted that this is a
case where there is inordinate delay in submitting final
report after the detection, and that failure on the part of the
Investigating Officer to prepare scene mahazar also is
important in this case. .Of the four witness examined in the
trial court, PW1 is the Excise Inspector who detected the
offence, PW4 is the Excise Inspector, who conducted
investigation and submitted final report, and PW3 is the
Excise Guard, who assisted the Excise Inspector in the
process of detection. PW2 examined as an independent
witness turned hostile. However, he identified his signature
in the detection mahazar and also on the label affixed on the
properties.
PW1 and PW3 have given consistent evidence
proving the detection in this case. Both are definite that
during patrol, they saw the accused coming with a plastic
can in his hands. When PW1 opened and examined the can
on suspicion, it was found containing a quantity of about
2.250 litres of arrack. In court, the witnesses identified the
MO1 plastic can containing arrack seized from the hands of
the accused. Both the witnesses have given evidence
regarding the collection of sample from the total quantity of
arrack. The sample and the properties were produced in
court on the next day itself. On analysis at the laboratory,
the liquid in the sample bottle was identified as arrack.
Both the witnesses are consistent that label containing the
signature of the accused and the witnesses was affixed on
the property , and also on the sample bottle. On the basis of
the labels, the witnesses identified the MO1 plastic can in
court. Both are consistent that the liquid contained in the
sample produced in court was taken from the MO1 plastic
can. It stands well proved that the accused was found
possessing some quantity of arrack in the MO1 plastic can
by PW1.Thus, the case of the detection and also the arrest of
the accused stands well proved in this case.
Ext.P6 forwarding note contains the specimen of
the seal affixed on the sample bottle and Ext.P5 property list
shows that the properties were produced in court on the
next day itself. The detection in this case was made at
about 5.45 p.m on 21.9.2007. Of course, there is no scene
mahazar in this case. One point argued by the defence is
that, the fact that there is no scene mahazar will make the
prosecution case suspicious. I do not agree. It is nowhere
stated that a scene mahazar is always necessary in a
prosecution. Scene mahazar will assume importance, and it
will have value as evidence, only in cases where the scene
of incident will provide some evidence. In some cases, the
scene of incident may provide some circumstances against
the accused. In this case, I find that the scene is described
in the detection mahazar itself, and the scene would not
provide any sort of material or circumstance against the
accused. So just because there is no scene mahazar in this
case, the accused cannot be acquitted.
I find no inordinate delay also in this case. The
Ext.P7 report of analysis was received in court only on
16.4.2008. Final report was filed in court by the Excise
Inspector on 22.3.2010, within two years. I find that the
accused is not entitled for the benefit of any infirmity or
defect in this case, and I find that the conviction is only to be
confirmed in appeal. The sentence imposed by the court
below is the minimum possible, in view of Section 354 (4)
Cr.P.C . The fine sentence is also the minimum. However,
the default sentence can be slightly reduced.
In the result, the conviction against the appellant
under Section 8(2) of the Act in S.C No.374 of 2010 of the
court below is confirmed, and the appeal is disposed of
accordingly. The jail sentence imposed by the trial court is
also confirmed. However, the default sentence imposed by
the trial court will stand reduced to rigorous imprisonment
for one month. The appellant will get the benefit of set off
as already ordered by the trial court.