Appellant is the accused in S.C No.206/2001 on the file of the Additional Sessions Judge, Kasaragod, who has been convicted and sentenced for an offence punishable under Section 8(1) and (2) of the Abkari Act.
2. Prosecution case in short is that on 07-07-1999 at about 8.00 a.m., the appellant was found in possession of arrack at a place called Mundemmadu in Neeleswar Village. After arresting the accused and preparing material documents, the case was registered. After investigation, a charge was filed. The accused was tried by examining five witnesses and marking nine documents on the side of the prosecution. There was no defence evidence. MO1 is the black can allegedly possessed by the accused at the time of detection of the offence.
3. Heard the learned counsel for the appellant and the learned Public Prosecutor.
4. PW4 is the detecting officer. He was working as the Excise Inspector, Neeleswar Range at the time of the incident. It is the case of PW4 that on 07-07-1999, he along with other officers were on patrol duty. When they reached near a bridge, they saw the appellant on the southern side of the bridge and he was holding a black can at that time. On the basis of suspicion, the appellant was detained and the jerry can held by him was examined. It was understood that he possessed illicit arrack. The appellant was arrested. Ext.P4 is the arrest memo. Sample was taken in a bottle of 375 ml and it was properly sealed and labelled. Thereafter, Ext.P1 mahazar was prepared from the scene of detection. The recitals in Ext.P1 mahazar support the testimony of PW4. In spite of cross examination, his evidence remains believable.
5. PW's 1 and 2 are the independent witnesses cited to prove search and seizure. PW1 turned completely hostile to prosecution. PW2 admitted his signature on Ext.P1 seizure mahazar. PW3 prepared Ext.P3 site plan. PW5 conducted investigation. He was the Excise Range Inspector, Neeleswar at the material time. Cross examination on these witnesses could not make any dent or discredit in their evidence.
6. Ext.P6 is the property list. It was produced without delay before the court. Ext.P7 forwarding note was also timely produced before the court. Ext.P8 is the specimen seal impression provided to the court on the date of detection itself. Ext.P9 the chemical analysis report shows that contraband recovered from the possession of the appellant tested positive for ethyl alcohol. Therefore, the oral and documentary evidence adduced in this case clearly establish that the appellant was guilty of the offence alleged against him. I find no reason to find that conviction is either illegal or incorrect. Therefore, I confirm the conviction of the appellant under Section 8(1) and (2) of the Abkari Act.
In the matter of sentence, learned counsel for the appellant pleaded for leniency. It is true that the case is of the year 1999. Considering the entire facts and circumstances, I reduce the sentence in the following manner.
In the result, the appeal is partly allowed. Conviction of the appellant under Section 8(1) and (2) of the Abkari Act is confirmed. He shall undergo rigorous imprisonment for a period of two months and pay a fine of Rs.1,00,000/- (Rupees one lakh only). In default of payment of fine, he shall undergo simple imprisonment for a period of two months. He is entitled to get the benefit of set off under Section 428 Cr.P.C. The trial court is directed to take urgent steps to execute the sentence.
All pending interlocutory applications will stand dismissed.
amk Sd/- A.HARIPRASAD, JUDGE.
//TRUE COPY// P.ATO JUDGE