Bharathi v. State Of Kerala

JUDGMENT

The first accused in a case charged under Sec.8(2) and Sec.55(a) of Abkari Act is the appellant. She and her husband faced trial for those offences, but, her husband (A2) was acquitted by the trial court. The appellant was sentenced to undergo R.I for 2 years and to pay Rs. 1,00,000/- as fine and in default to undergo S.I for 2 years.

2. The case of the prosecution is that on 11.8.1998 at 5.20 p.m, PW1, the Excise Inspector and his party conducted a search of the house bearing No. III/644 of Malayalapuzha Panchayath. They found a black can of 5 litre capacity having in it 3= litres of arrack. It was seen kept beneath the kitchen slab of that house. The appellant was present at the time of search. Ext.P1 is the search memo prepared by PW1 and sent to the court before conducting search. Ext.P2 search list was prepared then and there which was signed by the appellant as the owner of the house. She had also signed on the reverse of Ext.P2 for having received the copy of the search list. A separate seizure mahazar (Ext.P4) was also prepared then and there. It was stated that the can of 5 litre capacity which contained in it 3= litres of arrack was sealed then and there. That Can and another glass tumbler were affixed with labels containing the signatures of the accused and of the witnesses. Those contraband articles were described and seized as per Ext.P4 mahazar. When the appellant was questioned, she was stated to have told that the said liquor was entrusted to her by her husband, for sale. Hence, her husband was arrayed as 2nd accused. The search list, seizure mahazar, property list and the properties were produced before the learned Magistrate on the same day when the accused (petitioner) was produced before the learned Magistrate. No separate sample was taken by PW1 himself for the purpose of sending it to the chemical examiner. But instead, on 11.8.1998 itself, along with Ext.P7 remand application, a requisition was submitted by PW1 to the court requesting the court to take a suitable quantity of liquid as sample and to send the same from the court to the chemical examiner. The report of the chemical examiner (Ext.P8) shows that 180ml of liquid (sample) sent for chemical examination contained 25.63% by volume of ethyl alcohol.

3. PW1 to PW5 were examined and Exts.P1 to P10 were marked. MO1 and MO2 were also identified and marked. Accepting the evidence given by PW1 and other witnesses, the court below found that the appellant was the person who was actually in possession of the illicit liquor contained in MO1 can and that the prosecution could not prove the complicity of A2 and thus the appellant was convicted and sentenced as mentioned above. Her husband was acquitted.

4. The fact that the search of the house was conducted when the appellant was alone in the house and that the contraband articles were seized from beneath the kitchen slab of that house and the further fact that the search list was signed by the appellant as the person in occupation/possession of the house at the relevant time which is coupled with the fact that the appellant's signatures were obtained on the label affixed on the contraband articles would prove to the hilt that the appellant was in conscious possession of the contraband articles and as such, I find no reason to interfere with the concurrent verdict of conviction. The conviction is confirmed.

5. Learned counsel for the appellant submits that the substantive sentence may be reduced. Appellant was in possession of 3= litres of arrack. Considering all the aspects, I find that the sentence can be reduced.

In the result, this Crl.A is disposed of as stated below:-

The conviction is confirmed.

In supersession of the sentence awarded by the court below, the appellant is sentenced to undergo S.I for three months and to pay Rs. 1 lakh as fine and in default of payment of fine, she will undergo S.I for three months.