Appellant challenges the conviction under Section 58 of the Abkari Act imposed on him by the learned Additional Sessions Judge. Prosecution case, in short, is that on 12-02-2000 at about 8.50 a.m., the appellant was found in possession of three bottles, apiece having a volume of 750 ml and containing a coloured liquor. Thereby he is guilty for an offence under Section 58 of the Abkari Act. At trial, five witnesses were examined on the prosecution side and twelve documents were marked. There was no defence evidence.
2. Heard the learned counsel for the appellant and the learned Public Prosecutor.
3. Learned counsel for the appellant attacked the conviction and sentence arguing that they are legally unsustainable. PW1 was the Preventive Officer of the Excise Range, Irinjalakuda. He detected the offence on 12-02-2000. According to his testimony, there had been complaints that the appellant was handling illicit liquor. On receiving a complaint, they went to the place of occurrence. The appellant alighted from a K.S.R.T.C bus holding a bag. PW1 felt suspicion and searched the bag. It contained three bottles each of 750 ml filled with coloured liquor. When PW1 smelt it, he understood that it was illicit liquor. He arrested the appellant. The bottles, though contained a sticker that it was a particular brand of brandy, did not contain any label evidencing authenticity by Kerala State Beverage Corporation (K.S.B.C). After preparing a mahazar, the accused and the contraband were removed to Excise Office. Ext.P4 is the crime and occurrence report. Ext.P5 is the remand report. The accused was produced along with material documents before the court on the date of detection itself. Ext.P6 property list was also produced on the same day. In spite of cross examination on PW1, nothing could be brought out to discredit the veracity of his evidence. PW1 asserted that the appellant possessed 2 ¼ litres of spurious liquor.
4. Ext.P1 seizure mahazar was properly proved through PW's 1 and 2. PW's 2 and 3 are the conductor and driver respectively in the K.S.R.T.C bus. PW2 admitted his signature on Exts.P1 and P2. PW2 did not support the prosecution completely. However, his testimony was correctly analysed by the court below to find that in spite of hostility, there are sufficient materials to inculpate the appellant in the crime.
5. The seizure mahazar, property list and all the material documents were produced on the very same day of detection. There is no delay in preparing and producing the vital documents before the court. Further, the analysis report Ext.P12 would show that the contraband recovered from the possession of the appellant tested positive for ethyl alcohol with 40.8% by volume.
6. I find no illegality or irregularity in appreciating the evidence and convicting the appellant for an offence under Section 58 of the Abkari Act. Learned counsel for the appellant submitted that considering the age of the appellant, some leniency may be shown in the matter of sentence. Hence the following directions :
In the result, appeal is partly allowed. Conviction of the appellant under Section 58 of the Abkari Act is confirmed. The sentence of imprisonment imposed on the appellant by the court below is reduced to rigorous imprisonment for a period of six months and he shall pay a fine of Rs.1,00,000/- (Rupees one lakh only). In default of payment of fine, he shall undergo rigorous imprisonment for a period of three months. With this modification, the appeal is disposed of. The trial court is directed to take urgent steps to execute the sentence.
All pending interlocutory applications will stand dismissed.
Sd/- A.HARIPRASAD, amk JUDGE.