The main legal point established in the judgment is the reliance on contemporaneous documents and official testimony to establish guilt under the Abkari Act, as well as the consideration of personal circumstances in modifying the sentence.

JUDGMENT :

K. Haripal, J.

1. The convict in S.C. No. 386/2006 of Sessions Division, Kalpetta challenges his conviction under Section 8(1) and (2) of the Abkari Act, and sentenced to undergo simple imprisonment for four years and to pay fine of Rs. 1,00,000/-, in default simple imprisonment for two years. The case had originated on a final report laid by the Excise Inspector, Sulthan Bathery in Crime No. 46/2005 of Bathery Excise Range.

2. The precise allegation is that on 11.07.2005, at 5.45 p.m., the Preventive Officer, Excise Enforcement and Anti Narcotic Special Squad, Wayanad and party, while engaged in usual patrol duty, found the appellant on the Ponnakam paddy land area, on the road leading to Nambiarkunnu from Vendol in Cheeral village in Sulthan Bathery taluk, carrying six litres of arrack in a can having capacity of 10 litres. He was arrested from the spot, the contraband was seized under a mahazar prepared in the presence of independent witnesses and the material papers were handed over to the Excise Range Office and the said crime was registered. The accused was produced along with the contraband before the court on the following day itself. On conclusion of investigation, the charge sheet was laid before the Judicial First Class Magistrate, Sulthan Bathery where the case was taken on file as C.P. No. 93/2006 under Section 8(1) and (2) of the Abkari Act. After completing procedural formalities, the case was committed to the Sessions Court, Kalpetta from where it was made over to the Additional Sessions Court (Adhoc) I, Kalpetta.

3. After hearing counsel on both sides, the learned Additional Sessions Judge framed a charge alleging offence under Section 8(1) and (2) of the Abkari Act, read over and explained in Malayalam to which the appellant pleaded not guilty. He was on bail. He was defended by a counsel of his choice.

4. The prosecution evidence consists of oral testimony of PWs 1 to 7 besides documents marked as Exts. P1 to P7. Material objects were identified and marked as MOs 1 and 2. On conclusion of evidence, when examined under Section 313(1)(b) of the Code of Criminal Procedure, hereinafter referred to as the Cr.P.C., the appellant denied all the incriminating materials and reiterated his innocence. As it was not a fit case for acquittal under Section 232 of the Cr.P.C., the appellant was called upon to enter on his evidence in defence. However, no evidence was adduced by him. After hearing counsel on both sides, the learned Additional Sessions Judge repelled his plea of innocence, found him guilty and imposed a sentence as afore stated. That finding is under challenge in this appeal preferred under Section 374(2) of the Cr.P.C.

5. I heard the learned counsel for the appellant and also the learned Senior Public Prosecutor. The trial court records were also verified.

6. The learned counsel for the appellant submitted that the trial court was not justified in placing implicit reliance on the testimony of PWs 6 and 7, Excise Officials; from the oral testimony of PWs 3 and 4 independent witnesses, it is quite evident that they were not witnesses to the detection or recovery of the contraband from the appellant; they were called to the place at the time of preparation of the mahazar, which will not satisfy the statutory requirement. According to the learned counsel, the alleged place of occurrence is a place where there is a view of 200 meters from either side. If it was a genuine case, there was no difficulty for the appellant to run away from the place seeing the department vehicle at a distance of 200 meters. No independent witness had seen the appellant in possession of the contraband or running after abandoning the item. Therefore, it is quite unsafe to proceed against the appellant based on the uncorroborated oral evidence of PWs 6 and 7. The learned counsel also found it unusual that after the alleged detection, the officials had gone to a far of place at Meenangadi; surpassing the nearby Excise Office at Sulth