Babu Nair vs State of Kerala

P.S. Gopinathan, J.—The Additional Sessions Judge (Adhoc-I), Kozhikode, in Sessions Case No. 535/2000 found the appellant guilty for offence u/s 55(a) of the Abkari Act. Consequently, he was convicted and sentenced to rigorous imprisonment for three years and a fine of rupees one lakh with a default sentence of rigorous imprisonment for six months. Assailing the above conviction and sentence, this appeal is preferred. The prosecution case is that at 5.30 p.m. on 5.2.1998, while the then Excise Inspector, Balussery, who was examined as PW1, moving on patrol duty found the appellant carrying 4.5 litres of illicit arrack in a jerry can which was marked as MO1. The contraband was seized for which Ext. P1 seizure mahazar was prepared. 180 mls was taken as sample in a bottle and sealed. MO1 was also sealed. The appellant was arrested for which Ext. P2 arrest memo was prepared. Returning to the office, PW1 registered a case as Crime and Occurrence Report No. 9/98 for which Ext. P3 report was prepared. Material objects were produced before the Magistrate concerned along with the appellant. Ext. P4 is the property list. Sample was forwarded to the chemical examiner along with Ext. P5 forwarding note. From the chemical examiner, Ext. P6 report was obtained certifying that the sample contained 27.53% ethyl alcohol by volume. Further investigation was conducted by PW5, who succeeded PW1, and submitted the charge sheet before the Judicial Magistrate of the 1st Class, Koyilandi. On finding that the offence alleged is triable by a court of session, the case was committed to the Court of Session, Kozhikode. From there, it was made over to the Additional Sessions Judge.

The appellant pleaded not guilty when the charge was framed, read over and explained after hearing either side. Therefore, the appellant was sent for trial. On the side of the prosecution, PWs 1 to 5 were examined. Exts. P1 to P6 and MO1 were marked. When questioned u/s 313 of the Code of Criminal Procedure, the appellant took a plea of total denial and stated that the case was falsely foisted at the instance of PW4 with whom the appellant was on bitter terms. However, no defence evidence was adduced. The Additional Sessions Judge, on appraisal of the evidence, arrived at a finding of guilt, consequent to which the conviction and sentence under challenge were passed.

I have heard Sri. S.R. Sreejith, the learned counsel appearing for the appellant and the learned Government Pleader. Perused the impugned judgment as well as the evidence on record.

PW1 had given evidence in support of the prosecution case. According to him, while he along with the excise party were moving along Kandalloor estate - Kattadi road on patrol duty, he found the appellant coming to the road from behind building bearing No. KB/149 with MO1 jerry can in his right hand. Seeing PW1 and party, the appellant attempted to turn back and escape. Being got suspicious, the appellant was intercepted. The contents in MO1 was tested by smell and taste and convinced that it contained 4.5 litres of illicit arrack. The appellant was arrested, the contraband was seized and 180 mls was taken as sample in a bottle. Label was affixed on MO1 and the sample. Exts. P1 and P2 were identified by PW1. Ext. P4 property list, Ext. P5 forwarding note and Ext. P6 report of the chemical examiner were also proved by PW1. In Ext. P6, it is certified that the sample contained 27.53% of ethyl alcohol by volume. Though PW1 was subjected to a searching cross examination, no material was disclosed to disbelieve PW1. There is nothing to show that PW1 was any way motivated to cook up a case against the appellant. The material objects were produced before the court on the next day. Therefore, there is no delay in producing the material objects also.

PW2, the Excise Guard, would support the evidence of PW1. PWs 3 and 4 had also identified Ext. P1 and the label contained in MO1. They had admitted their signatures. Of course, they had denied the seizure of MO1. PW5 would depose about the process of the investigation. Though PWs 3 and 4 had denied the seizure of the contraband, in the light of the evidence of PWs 1 and 2 supported by Ext. P1, I find no reason to disbelieve the evidence of prosecution regarding the arrest of the appellant and seizure of MO1 containing 4.5 litres of arrack. The nature of the liquid was established by Ext. P6. Therefore, I find that the Additional Sessions Judge was right in arriving at a conclusion of guilty. There is no room for any interference with the conviction under challenge.

Having due regard to the fact that the quantity of the contraband seized is only 4.5 litres and that no bad antecedent is reported, I find that the appellant is entitled to a little leniency in sentence and that a sentence of rigorous imprisonment for six months with the minimum fine as imposed by the trial court would meet the ends of justice. In the result, the appeal is allowed in part. While confirming the conviction, the substantive sentence is reduced to rigorous imprisonment for six months. The minimum fine imposed by the trial court with the default sentence is sustained. The appellant is directed to surrender before the trial court for execution of sentence. The trial court shall see the execution of sentence and report compliance.