The appellant was convicted by the Additional Sessions Court (Adhoc)-I, Thiruvananthapuram, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of ₹ 1 lakh and, in default of payment of fine, to undergo rigorous imprisonment for one year. Challenging the conviction and sentence so passed by the court below, the appellant has preferred this appeal.
2. Learned counsel for the appellant submitted that the appellant expired after filing this appeal. The memo filed by the Public Prosecutor along with the report of the concerned Excise Inspector and the copy of the Death Certificate confirmed the death of the appellant on 13-01-2008.
3. The near relatives of the appellant did not file any application for leave to continue the appeal. Since the sentence awarded by the court below is a composite one of imprisonment and fine, I have heard the learned counsel for the appellant and the learned Public Prosecutor and also carefully perused the records of the case.
4. The prosecution case is briefly stated as follows: PW3, the Excise Inspector, Chirayinkil, and his party were on patrol in the evening on 10-04-2000. When they reached Elampa in Muthakkal Village, at 5.30 p.m., the appellant was seen coming from the opposite side carrying a 10 litre jerrycan. Seeing the excise party, the appellant attempted to flee away. But, the excise party stopped him there. On examination, it was found that the jerrycan contained about 5 litres of arrack. Therefore, the appellant was arrested by PW3 then and there. Ext.P2 is the Arrest Memo and Ext.P3 is the Arrest Intimation Notice prepared by PW3. The contraband arrack was sealed and labelled and seized by PW3 under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW3 proceeded to the Excise Range Office, Chirayinkil, with the accused, contraband and the records and registered Crime No.9 of 2000. Ext.P4 is the Crime and Occurrence Report thus prepared by PW3. He had produced the appellant along with remand report, contraband and the records prepared, before the concerned Magistrate on 10-04-2000 itself. He had also submitted the requisition for taking sample of the contraband and for sending the same for chemical analysis. He had conducted investigation of the case. He had questioned the witnesses and recorded their statements. After completing the investigation, he had filed the Final Report before the Judicial First Class Magistrate's Court-I, Attingal. The learned Magistrate, after complying with the legal formalities, committed the case to the Court of Session, Thiruvananthapuram. The case was initially made over to the Assistant Sessions Court, Attingal, from the Court of Session and, subsequently, made over to the Additional Sessions Court (Adhoc)-I, Thiruvananthapuram.
5. The court below framed a charge against the appellant alleging the offence under Section 55(a) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 3 and marked Exts.P1 to P5 and M.O.1 on their side. The appellant was questioned under Section 313 (1)(b) of Cr.P.C. He had denied the incriminating circumstances shown against him. The defence had not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder and, after hearing him on the question of sentence, imposed the sentence on him.
6. PW1 was examined as an independent witness for proving the occurrence, preparation of Ext.P1 Seizure Mahazar and Ext.P2 Arrest Memo. He had not supported the prosecution case. But, he had admitted his signatures in Ext.P1 Seizure Mahazar and Ext.P2 Arrest Memo.
7. PWs.2 and 3 deposed before the court in terms of the prosecution case. Nothing was brought out during cross examination to disbelieve the evidence so adduced by PWs.2 and 3. The seizure of the contraband and arrest of the appellant are supported by the contemporaneous Mahazar and Arrest Memo prepared. Soon after the detection of the offence, the Crime and Occurrence Report had been prepared and the accused along with M.O.1 contraband and connected records was produced before the concerned Magistrate on 10-04-2000 itself. M.O.1 was identified by both PWs.2 and 3. On considering the evidence on record, this Court does not find any infirmity with the finding of guilty of the appellant of the offence under Section 55(a) of the Abkari Act. He was rightly convicted thereunder and sentenced to rigorous imprisonment for two years and to pay a fine of ₹ 1 lakh. Therefore, the conviction and sentence so passed against the appellant are liable to be confirmed by this Court and hence, I do so.
8. In the result, the conviction of the appellant for the offence under Section 55(a) of the Abkari Act and the sentence of rigorous imprisonment for two years and to pay a fine of ₹ 1 lakh imposed on him are confirmed. Since the appellant expired during the pendency of this appeal, the imprisonment portion of the sentence cannot be enforced. However, the deceased appellant's estate will be liable for the fine of ₹ 1 lakh imposed on him.
This appeal is disposed of as above.
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BABU MATHEW P. JOSEPH JUDGE //TRUE COPY// P.A. TO JUDGE