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Judgment
The appellant herein challenges the conviction and
sentence against him under Section (2) of the Kerala Abkari
Act (''the Act'' for short) in S.C 194/2008 of the Court of
Session, Kasaragod.
The prosecution case is that at about 5.30 p.m
on 25.8.2005 at Manjeshwar, within the limits of the
Kumbla Excise Range, the accused was found possessing
16.3 litres of arrack, contained in 163 packets of 100 ml
capacity. The offence was detected by the Excise Inspector
of the Kasaragod Excise Range who was having additional
charge of Kumbla Excise Range at that time. He arrested
the accused on the spot and seized the packets of arrack as
per a mahazar. He produced the accused and the
properties at the Excise Range Office, Kumbla, where he
registered the crime and occurrence report. Later,
investigation was taken over by the Excise Inspector of the
Kumbla Excise Range, and he submitted final report also 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, Kasaragod 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 Act. The prosecution examined five
witnesses in the trial court, and proved Exts.P1 to P11
documents. There was no property to be identified during
trial, because the properties had been by the time produced
before the Assistant Commissioner of Excise for necessary
procedure under Section 53A of the Act. The accused
denied the incriminating circumstances, when examined
under Section 313 Cr.P.C. He did not adduce any evidence
in defence.
On an appreciation of the evidence, the trial court
found the accused guilty. On conviction, he was sentenced
to undergo rigorous imprisonment for four years, and to pay
a fine of 1 lakh by judgment dated 28.02.2011. Aggrieved
by the judgment of conviction, the accused has come up in
appeal.
Of the five witnesses examined in the trial court,
PW1 is the Excise Inspector, who detected the offence and
PW5 is the Preventive Officer, who assisted PW1 in the
process of detection. PW2 and PW3 examined as
independent witnesses turned hostile. PW4 is the Excise
Inspector of the Kumbla Excise Range, who investigated the
case and submitted final report. PW2 and PW3 have in fact
identified their signature in the detection mahazar. PW1 and
PW5 have given consistent evidence proving the detection
in this case. Their evidence is that during patrol, they saw
the accused carrying a bundle and when the Excise
Inspector examined it on suspicion, he found 163 packets of
arrack. He arrested the accused on the spot, and the
packets of arrack were seized as per a mahazar. The liquid
contained in three packets was taken by him as sample
and the sample was well packed and sealed at the spot of
detection. The properties were produced in court without
any delay. The chemical analysis report shows that on
analysis the sample was detected as arrack. The remaining
160 packets of arrack were produced before the Assistant
Commissioner of Excise for necessary action. Ext.P9 is the
inventory prepared by the Assistant Commissioner of Excise,
certified by the Judicial Magistrate having jurisdiction.
Ext.P9(a) photograph was also certified by the learned
Magistrate. Thus I find that the Assistant Commissioner of
Excise had well complied with the provisions of Section 53A
of the Act. Ext.P9 inventory and Ext.P9 (a) photograph read
along with the evidence of PW1 and PW5 will prove that 163
packets of arrack were seized by PW1 from the hands of the
accused. Thus the offence under Section 8 (2) of the Act
stands very well proved against him. Ext.P8 forwarding note
contains the specimen of the seal affixed on the sample
bottles. The accused is not entitled for the benefit of any
infirmity in the prosecution case.
The sentence imposed by the trial court is
rigorous imprisonment for four years. The age of the
accused at the time of detection was 42 years. No other
crime of similar nature is seen reported against him. On a
consideration of all the relevant aspects, I find that the
sentence can be reasonably reduced. The default sentence also can be reasonably by the court in appeal.
In the result, the conviction against the appellant
under Section 8(2) of the Act in S.C No.194 of 2008 of the
court below is confirmed, and the appeal is disposed of
accordingly. However, the jail sentence imposed by the
trial court is reduced to rigorous imprisonment for one and
half (1 =) years. The fine sentence imposed by the court
below is maintained, but the default sentence will stand
reduced to rigorous imprisonment for three months. The
appellant will get the benefit of set off as already ordered by
the trial court.