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2017 DIGILAW 330 (KER)

N. A. MUHAMMEDALI v. STATE OF KERALA

2017-02-16

P.UBAID

body2017
JUDGMENT : The appellant herein is the first accused in S.C. No. 499 of 2008 of the Court of Session, Kasaragod. He and another person faced prosecution under Section 8(2) of the Kerala Abkari Act (hereinafter referred to as 'the Act') on the allegation that on 18.12.2007, at Karanthakkade within the Kasaragod Excise Range, the two accused were found transporting huge quantity of arrack contained in 2000 packets, and at the instance of the first accused another quantity of 500 packets was also seized from his house. The Excise Inspector of the Kasaragod Excise Range detected the offence. He intercepted the car No. KL 11H 3933 driven by the first accused on the basis of reliable information, and when the car was stopped at the place of detection, the passenger seen inside the car ran off and escaped. The said passenger was later arraigned as the second accused on the basis of the information and the details given by the first accused. The first accused was arrested on the spot, and the contraband articles including the car were seized as per mahazar. When the Excise Inspector inspected the car, he found 4 bags containing 500 packets each of arrack, and each packet containing 100 ml. When interrogated by the Excise Inspector, the first accused gave some material information. On the basis of this information, and as led by the first accused, the Excise Inspector searched the house of the first accused, and on search, he could seize another quantity of 500 packets of arrack. The first accused and the properties were taken to the Excise Range Office immediately, where the Excise Inspector registered a crime. The Excise Circle Inspector of the Kasaragod Excise Range conducted investigation, and he submitted final report in court against the two accused. 2. After complying with the procedure prescribed under the law, the learned Judicial First Class Magistrate-I committed the case to the Court of Session from where it was made over to the learned Additional Sessions Judge (Adhoc-II), Kasaragod, for trial and disposal. 3. The two accused appeared before the trial court and pleaded not guilty to the charge framed against them under Section 8(2) of the Act. The prosecution examined 5 witnesses including the detecting officer, and proved Exts.P1 to P18 documents. The accused did not adduce any evidence in defence. 4. 3. The two accused appeared before the trial court and pleaded not guilty to the charge framed against them under Section 8(2) of the Act. The prosecution examined 5 witnesses including the detecting officer, and proved Exts.P1 to P18 documents. The accused did not adduce any evidence in defence. 4. When examined under Section 313 Cr.P.C., the accused denied the incriminating circumstances, but they did not explain the possession of huge quantity of arrack seized by the Excise Inspector. 5. On an appreciation of the evidence, the trial court found the first accused guilty under Section 8(2) of the Act. The second accused was found not guilty, and accordingly, he was acquitted. On conviction, the first accused was sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of 1 lakh, by judgment dated 22.12.2011. Aggrieved by the said judgment of conviction, the first accused has come up in appeal. 6. On hearing both sides and on a perusal of the materials, I find no reason or scope for interference in appeal in the conviction made by the court below. PW1 is the Excise Inspector who detected the offence, and PW5 is the Excise Circle Inspector who investigated the case and submitted final report in court. PW4 is the independent witness who turned hostile to the prosecution. PW2 is the Preventive Officer who assisted the Excise Inspector in the detection process. PW3 is the Secretary of the Chengala Grama Panchayat examined to prove Ext.P14 ownership certificate in the name of the first accused. This certificate relates to the house No. CP XIV/128. 7. There is nothing to show that there was any flaw or irregularity or illegality in the investigation conducted by PW5. The detection in this case was made by a competent officer, and investigation was also made by a competent officer. The contraband articles involved in this case are a huge quantity of arrack contained in 2500 packets, and a machine for manufacturing arrack. The total quantity of arrack comes to 250 litres. Of the total quantity, 2000 packets were seen in the car driven by the appellant, and another 500 packets were seized from the house at his instance. The mahazar relating to this seizure shows that seizure was made at the house No. XIV/128. It stands proved by the evidence of PW3 and Ext.P14 certificate that this house belongs to the appellant. The mahazar relating to this seizure shows that seizure was made at the house No. XIV/128. It stands proved by the evidence of PW3 and Ext.P14 certificate that this house belongs to the appellant. Seizure of huge quantity of arrack from the possession of the accused stands well proved by the evidence of PWs 1 and 2. These two Excise Officials have no reason to foist a false case against the accused. 2000 packets of arrack were found in the car No. KL 11H 3933. Ext.P16 extract of registration particulars will show that the said car belongs to the wife of the appellant. PW1 has given evidence that he had collected samples from the total quantity of arrack contained in 2500 packets. The arrack contained in three packets was taken as sample in a bottle which was properly sealed and packed. The sealed bottle was produced in court without any delay, and the other properties were produced before the Assistant Excise Commissioner under Section 53(a) of the Act. I find that the properties were produced without any delay before the authorised officer. Ext.P9 is the inventory prepared by the Assistant Excise Commissioner, and certified by the learned Magistrate having jurisdiction. The sample bottle was produced in court on the next day itself by the Excise Inspector. The inventory shows that the other properties were also produced before the authorized Officer without any delay. The properties include a machine also seized from the house of the accused. PWs 1 and 2 stated that this is the machine used for manufacturing arrack. This means that arrack was manufactured by the accused at his own house as an industry, and he happened to be arrested with 2000 packets of arrack probably on his way for sale. Anyway, seizure of 250 litres of arrack contained in 2500 packets from the possession of the accused stands well proved in this case by the evidence of PWs 1 and 2. 8. Ext.P17 report of Chemical Analysis shows that the liquid analysed at the laboratory was detected as arrack. Evidence shows that this sample was collected from the total quantity of arrack seized from the possession of the accused. Here also, the prosecution case stands well proved. There is nothing to show that either the sample bottle or the other properties were at any time tampered with anywhere before the properties were produced before the right authority. Evidence shows that this sample was collected from the total quantity of arrack seized from the possession of the accused. Here also, the prosecution case stands well proved. There is nothing to show that either the sample bottle or the other properties were at any time tampered with anywhere before the properties were produced before the right authority. I find that the whole prosecution case stands well proved in this case beyond reasonable doubt. The second accused stands acquitted by the trial court. I find that the first accused was rightly convicted by the trial court under Section 8(2) of the Act. 9. Now the question of sentence. The sentence imposed by the trial court is rigorous imprisonment for five years and a fine of 1 lakh. Even a machine for the manufacture of arrack was seized from his house. Such a person does not deserve any sympathy or leniency in the matter of sentence. I find that the appellant is a manufacturer of arrack in large quantity, as an industry. Such a person will have to be appropriately and adequately dealt with. I find that the sentence imposed is quite reasonable and adequate. In the result, this appeal is dismissed, confirming the conviction and sentence passed against the appellant under Section 8(2) of the Act in S.C. No. 499 of 2008 of the court below.