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Judgment
The appellant herein challenges the conviction and
sentence against him under Section 55 (a) of the Kerala
Abakari Act (for short '' the Act'') in S.C 357 of 2009 of the
Court of Session, Palakkad.
The prosecution case is that, at about 5.00 p.m
on 13.12.2007, at Keralaparambu within the Alathur
Excise Range in Palakkad District, the appellant was found
transporting 495 litres of spirit contained in 15 plastic cans
in a Tata Indica car with pseudo No.KL-01-AH 3680. The
offence was detected by the Excise Inspector of the Alathur
Excise Range. He arrested the accused and seized the
contraband articles including the vehicle as per a mahazar.
The original registration number of the vehicle was later
identified as KL-01B-1044. On the basis of the arrest and
seizure, the Excise Inspector registered the crime and
occurrence report. Without any delay, the accused and the
samples were produced in court and the huge quantity of
spirit contained in 15 cans was produced before the
Assistant Excise Commissioner for necessary action under
Section 53A of the Act. Investigation was taken over by
another Excise Inspector. After closing the investigation, 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)
II, Palakkad for trial and disposal.
The accused appeared before the trial court and
pleaded not guilty to the charge frame against him under
Section 55 (a) of the Act. The prosecution examined four
witnesses in the trial court and proved Exts.P1 to P10
documents. The MO1 mobile phone seized from the
possession of the accused was also identified during trial.
When examined under Section 313 Cr.P.C, the accused
denied the incriminating circumstances. He did not adduce
any evidence in defence though opportunity was granted by
the trial court.
On an appreciation of the evidence, the trial court
found the accused guilty under Section 55 (a) of the Act.
On conviction, he was sentenced to undergo rigorous
imprisonment for four years and to pay a fine of
1,00,000/- by judgment dated 16.9.2010. Aggrieved by the
said judgment of conviction, the accused has come up in
appeal.
Of the four witnesses examined in the trial court,
PW1 is the Excise Inspector who detected the offence and
registered the crime and occurrence report, and PW2 is the
Excise Inspector who investigated the case and submitted
final report in court. PW3 is the Excise Guard who assisted
the Excise Inspector in the process of detection and PW4 is
an independent witness. PW4 turned hostile during trial.
However, he identified his signature in the Ext.P2 detection
mahazar.
PW1 and PW3 have given evidence proving the
seizure of 15 plastic cans containing spirit from the
possession of the accused. Their evidence is that the Excise
team led by PW1 intercepted the vehicle No.KL-01-AH 3680
at Keralaparambu. When the Excise Inspector inspected the
vehicle, he found 15 cans containing spirit. The vehicle was
driven by the accused in this case. The Excise Inspector
arrested the accused on the spot and seized the contraband
articles including the vehicle. During investigation, it could
be detected that the correct number of the vehicle is KL-
01B-1044 and that for transporting spirit illegally a pseudo
number was inscribed by the accused on the number plate.
There is nothing to show that there was any flaw or illegality
or irregularity in the investigation conducted by PW2.
The samples collected by PW1 at the spot of
detection were well packed and sealed and the samples
were produced in court without any delay. The Ext.P5
inventory prepared by the Assistant Commissioner of Excise
under Section 53A of the Act shows that he had verified all
the properties at the time of preparing the inventory. The
Judicial First Class Magistrate having jurisdiction has
certified the correctness of the inventory. The certificate
issued by the learned Magistrate shows that the
photographs were also verified by him at the time of
certifying the correctness of the inventory. The properties
were dealt with by the competent authorised officer
appointed under Section 67B of the Act and the quantity of
liquor was later sold to the Travancore Sugars Limited as
authorised by the Commissioner of Excise. The Ext.P5
inventory is admissible in evidence even without examining
the Assistant Commissioner who prepared it. The inventory
certified by the Magistrate connects the accused with the 15
cans containing spirit. The samples were produced in court,
without any delay and the samples were sent for analysis.
Ext.P9 report shows that on examination the samples were
identified as spirit. It stands proved by PW1 and PW2 that
the samples were collected from the quantity of spirit seized
from the hands of the accused. Thus, I find that the
prosecution has well proved the offence under Section 55 (a)
of the Act. I find no scope for interference in appeal. All the
factual aspects including the procedure under Section 53A of
the Act are well proved.
Now the question of sentence. The jail sentence
imposed by the court below is rigorous imprisonment for
four years. The accused was at his prime age of 29 years
when the Police submitted final report in court. No other
case of similar nature is seen reported against him, and
there is no other conviction to his credit. Being a first
offender who happened to transport some quantity of spirit
at the prime age of 29. I feel it appropriate to reduce the
sentence reasonably in the interest of justice. I feel that
rigorous imprisonment for one year will be the adequate
sentence in this case. The default sentence imposed by the
court below also can be reasonably reduced, though the fine
amount cannot be reduced.
In the result, the the conviction against the appellant
under Section 55(a) of the Act in S.C No.357 of 2009 of the
court below is confirmed, and the appeal is disposed of
accordingly. However, the jail sentence imposed by the
court below will stand reduced to rigorous imprisonment for
one year. The fine sentence is maintained, but the default
sentence will stand reduced to rigorous imprisonment for
three months.