Aggrieved by the conviction of the appellant under Section 8(1) and (2) of the Abkari Act, he has preferred this appeal.
2. Heard the learned counsel for the appellant and the learned Public Prosecutor.
3. Prosecution case, in short, is that on 27-10-1998 at about 8.a.m., the Preventive Officer and his party while on patrol duty found the appellant in a suspicious circumstance and he was holding a can. On seeing the behavioral pattern of the appellant, he was questioned. It was found that he possessed about 2.5 litres of illicit arrack in the can. After having satisfied that the contraband was illicit arrack, the accused was arrested. From the place of detection, Ext.P1 mahazar was prepared. Ext.P2 arrest memo and Ext.P3 arrest notice respectively were also prepared. Sample was taken in a 375 ml bottle and it was properly sealed. Thereafter, the accused and the contraband articles were removed to the Excise Office and then to the court on the same day.
4. At the time of trial, six witnesses testified on the side of the prosecution and nine documents were marked. There was no defence evidence.
5. Learned counsel for the appellant contended that the documents allegedly prepared contemporaneous to the detection do not vouchsafe the correctness of detection. According to him, there is an incongruous version spoken to by the prosecution witnesses regarding a seal on Ext.P1 mahazar. That apart, the arrest notice does not show the identity of the person to whom it was given.
6. PW1 was the Preventive Officer in the Excise Department at the material time. He testified in terms with the recitals in Ext.P1 mahazar. The testimony of PW1 and the recitals in Ext.P1 mahazar would show that the accused was found possessing 2.5 litres of illicit arrack on 27-10-1998 at about 8.00 a.m. After completing all the formalities, the accused was arrested. Ext.P1 mahazar was prepared from the place of occurrence itself. This contention of the prosecution get support from the testimony of PW2 as well.
7. PW's 3 and 4, the independent witnesses cited, turned hostile to the prosecution.
8. PW5 was the Excise Officer, who received the accused and the contraband articles at the Excise Office. He registered Ext.P6 occurrence report. Property list and forwarding note were prepared and they were presented before the court on the date of detection itself. They are marked as Exts.P7 and P8.
9. PW6 investigated the case. Testimony of this witness would show that the entire procedure was completed with utmost accuracy and in compliance with the provisions of law.
10. Learned counsel for the appellant contended that Ext.P1 mahazar does not contain the sample seal and for that reason, the identity of the sample produced before the court could not be verified. This submission of the appellant cannot be accepted for the reason that the official acts were performed in a regular manner and there is no chance of mixing up of contraband in this case with any other contraband. That apart, the entire procedure was completed without any delay. Considering the entire facts and circumstances, I find that the conviction of the appellant by the court below for an offence under Section 8(1) and (2) of the Abkari Act is legal and sustainable.
11. In the matter of sentence, learned counsel for the appellant pleaded for leniency. Reckoning the fact that the incident was in the year 1998 and also that the appellant was not involved in any other offence, I feel that sentence can be reduced to some extent.
In the result, Crl.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 three months and pay a fine of Rs.1,00,000/- (Rupees one lakh only) and in default of payment of fine, he shall undergo simple imprisonment for a period of three months. The appellant 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.
Sd/- A.HARIPRASAD, JUDGE.
amk //True copy// P.A to Judge