Babu. M. John vs State of Kerala and The Excise Inspector, Mavelikkara Excise Office, Mavelikkara

N.K. Balakrishnan, J.—This appeal is directed against the conviction and sentence passed against the appellant by the learned Addl. Sessions Judge Fast Track (Adhoc-I), Alappuzha for offence punishable under Sec. 8(2) of the Abkari Act. He was sentenced to undergo imprisonment for one year and to pay Rs. 1 lakh as fine, in default whereof, to undergo S.I. for one year.

The case of the prosecution is that on 27.10.1999 at about 5.30 PM while PW1, the Preventive Officer and other excise officials were on patrol duty, the accused was found carrying a bottle containing 750ml of liquid which when smelt and tasted found to be contraband arrack. From that bottle 200ml was taken as sample in a bottle of 375ml. The accused was arrested then and there Arrest memo was prepared. The properties were seized as per the seizure mahazar. The accused and properties were produced before the Excise Inspector (PW2). After conducting investigation, charge sheet was laid against the appellant.

PW1 to PW6 were examined and Exts.P1 to P5 were marked on the side of the prosecution. Besides, MO1 arrack bottle with arrack was also identified and marked. The wife of the accused was examined as PW1 to contend that she was not informed of the arrest of her husband and that she did not sign the arrest memo. The learned Addl. Sessions Judge after thorough scrutiny of 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 there is no legal evidence to show the arrest of the accused and seizure of MO1 from his possession. The evidence given by DW1 should have been given due weight by the court below. Simply because she happened to be the wife of the accused, she should not have been disbelieved by the courts below. The fact that PW3 and PW4, the independent witnesses did not support the prosecution also should have been duly considered by the court below to hold that the prosecution case is untrue.

Learned Public Prosecutor resisted the submission made by the learned counsel for the appellant and supported the impugned judgment. It is further argued that sample bottle and other properties were produced before the court on 28.10.1999 itself and the endorsement made by the learned Magistrate would show that it was received in court on 28.10.1999. The evidence given by PW1, the Preventive Officer which was corroborated by PW5, the Excise Guard would show that on 27.10.1999 at 5.30 PM while the excise party was on patrol duty, when they reached the road in front of the tea shop of one Sajan, the accused was found carrying a bottle of 750ml containing liquid, which when smelt and tasted was found to be illicit arrack. From out of the said bottle, 200ml was taken as sample. The sample bottle and the bottle containing the remaining part of the liquor were sealed and labeled in the presence of the witnesses and the accused. The learned counsel for the appellant would submit that Ext.P1 does not show that the label was affixed on the sample bottle or any other bottle. But it was mentioned that it was sealed then and there and that the accused was asked as to whether he has got any seal to be affixed. He agreed that the seal already affixed is sufficient. That would only show that the seal was affixed then and there. It is also important to note that the properties reached the court on 28.10.1999 itself. It was specifically noted that both bottles were in sealed condition. In view of the endorsement made by the office of the court, the learned Magistrate ordered to return two bottles to be kept in the excise office on 28.10.1999 itself. Therefore, the endorsement in Ext.P4 that both bottles were in sealed condition and were returned to be kept in the office of the Excise Inspector would only vouch for the correctness of the contention that both bottles were in properly sealed condition.

Learned counsel for the appellant submits that the sample was examined by the chemical examiner only on 29.10.1999. In Ext.P4, it was specifically mentioned that the sample sent by the court was received in the office of the Chemical Examiner on 28.10.1999. Therefore that also would make it clear that there is no delay in sending the sample for chemical analysis. It was noted that the seal on the bottle was in tact and found tallied with the sample seal provided. The sample of liquid on examination was found to contain 34.83% by volume of ethyl alcohol. It is far below the standard prescribed and as such it has to be held that the liquid seized from the accused was illicit.

It is vehemently argued by the learned counsel for the appellant that PW6 has admitted that he conducted the investigation in the case only after 16.3.2001. But it may be noted that so far as the detection of the case is concerned, the seizure of the articles, preparation of the sample, production of the accused and the properties before court etc. were completed by 28.10.1999 itself. The property was sent to the office of the chemical examiner on the next day itself. Therefore, practically the entire investigation was over by 29.10.1999 itself. Since the arrest and seizure as evidenced by contemporaneous record Ext.P1 seizure mahazar, the arrest memo and Ext.P3 occurrence report and the production of the property to the court as evidenced by Ext.P4 would speak for itself all the necessary steps taken immediately. The fact that PW6 started investigation only after two months cannot affect the evidence which has been let in by the prosecution.

It is vehemently argued by the learned counsel for the appellant that a specific case was put forward by the accused and his wife DW1 that there was property dispute between the accused and one Kesavan, an officer of the Excise Department. It is pointed out that PW1 has admitted that such an officer is working in Mavelikara. It is not specifically stated that who that officer is. To prove that there was a property dispute between the accused and such an officer, no document or oral evidence could be produced by the defence. When PW6 was in the witness box no such question was put to him. Even to show that there was a property held by an Excise Officer abutting the property of the accused and his wife, no document has been produced. According to DW1, her husband was taken to the office of the Excise Department on the night of 27.10.1999. Learned Public Prosecutor would submit that the interested version of DW1 cannot in any way affect the evidence let in by the prosecution especially when the allegation of enmity put forward by the defence is totally unfounded.

It is also argued by the learned counsel for the accused that since the copy of the forwarding note has not been marked in this case that also would affect the case of the prosecution. But it may be noted that when Ext.P5 was marked no question was put challenging the correctness of the statement contained therein. The seal on the bottle was intact and found tallied with the sample seal provided. Ext.P4 was also not challenged. In these circumstances, I find no illegality vitiating the order of conviction. Hence, the conviction is to be confirmed.

Learned counsel for the appellant submits that the quantity of liquid possessed by the accused was only 750ml and so the sentence awarded by the court below may be modified. Considering all the aspects, I find that the substantive sentence can be modified.

In the result, this criminal appeal is disposed of as stated below :-

The conviction of the appellant for the offence under Sec. 8(2) of Abkari Act is confirmed. In supersession of the sentence awarded by the court below, the appellant is sentenced to undergo R.I. for one month and to pay Rs. 1 lakh as fine and in default of payment of fine, he will undergo R.I. for one month. The court below will proceed to execute the sentence forth with.