Appeal against the judgment of the trial court for convicting the appellant under Section 8(1) and (2) of the Abkari Act.
2. Heard the learned counsel for the appellant and the learned Public Prosecutor.
3. Learned counsel for the appellant reported that the appellant expired. I have carefully perused the records and gone through the judgment as this is a case involving composite sentence of imprisonment and fine.
4. Prosecution case in short is that on 19-10-1998 at about 11.45 a.m, the Preventive Officer of the Excise Department and party, while on patrol duty, found the deceased appellant standing by the side of a road with a black can of 5 litre capacity in his right hand. On feeling suspicion, he was prevented from going away and the can was examined. It was found that the can contained 5 litres of illicit arrack. Therefore, the deceased appellant was arrested. After completing the formalities, a case has been registered and he was produced before the Magistrate.
5. During trial, the prosecution examined six witnesses and marked eight documents. There was no defence evidence. MO1 is the plastic can recovered from the possession of the deceased appellant.
6. PW1 was the Preventive Officer who conducted the search and detection of the offence. PW2 was yet another Preventive Officer in that patrol party. PW's 3 and 4 are the independent witnesses. PW's 5 and 6 are the Excise Inspectors of Addor Excise Range.
7. Both PW's 1 and 2 deposed that at the time of detection, they were working as Preventive Officers in Adoor Excise Range. It is their definite case that they found the deceased appellant at about 10.30 a.m on 19-10-1998 while they were proceeding through a public road. The behaviour of the deceased appellant evoked suspicion in the mind of the Excise Officers and he was questioned. Then the offence was revealed. Thereafter, they took samples from the illicit arrack possessed by the deceased appellant and the sample and can were properly sealed. Then Ext.P1 mahazar was prepared by PW1. Ext.P2 is the arrest memo. PW's 3 and 4 are the independent witnesses also admitted their signatures on Ext.P1 mahazar. But they deviated from their previous statements that they witnessed the search and seizure. However, that portion of the testimony of PW's 3 and 4 supporting the prosecution give corroboration to the evidence adduced by PW's 1 and 2.
8. The accused and the contraband were produced before the court without delay. All the records relating to search and seizure was produced. Ext.P6 is the property list submitted before the court on the next day. The sample was sent for analysis. Ext.P8 is the chemical examiner's report. All these records coupled with oral evidence adduced in the case would show that the deceased appellant committed the alleged offence. There is absolutely no reason to hold that the finding of the court below, regarding the guilt of the appellant, is either illegal or incorrect. In the matter of sentence, as the appellant expired, the imprisonment part of the sentence has become unworkable. However, the fine imposed on the deceased appellant will survive. I find that the fine imposed on the appellant is legally justifiable.
In the result, the appeal is dismissed as it is devoid of any merit.
All pending interlocutory applications will stand dismissed.
amk Sd/- A.HARIPRASAD, JUDGE.
//True copy// P.A to Judge