Evidence of illegal possession is sufficient under the Abkari Act to affirm conviction, despite witness contradictions.

J U D G M E N T

This appeal is preferred against the conviction and sentence passed by the Addl. Sessions Judge, Adhoc-I, Kasaragod in S.C.174/00. The accused was charge sheeted for the offences u/Ss.55(a), (b) and (g) of the Abkari Act and he was found guilty under all the Sections and he was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/- each under each Section but the sentence was directed to run concurrently. It is against that decision the accused has come up in appeal.

2. The points that arise for determination in the appeal are;

(1) Whether the materials available are sufficient to hold that the accused is guilty of the offence under Ss.55(a), (b)

and (g) of the Abkari Act ?

(2) Is there anything to interfere with the decision rendered?

Crl.A. 546 OF 2003 Points:

3. It is the case of the prosecution that the accused was found in illegal possession of 40 liters of wash and 2 liters of illicit arrack on 14.9.99 at about 11.30 a.m. in the nhali (lean to) of the residential house of the accused bearing Door No.I/530 of Kayyoor-Cheemeni Panchayat. Ext.P2 is the tax assessment register extract which would reveal that the owner of the house is the mother-in-law of the accused. PW6 is the person who had detected the crime and conducted the investigation. A perusal of the evidence of PW6 would reveal that on 14.9.99 he got a reliable information that illicit arrack was being manufactured by the accused in the house and when he went to the spot and in the lean to he was able to find the accused lighting fire and the articles on examination was found to be wash and arrack. It was seized and sample was taken and in the presence of the woman police constable she was arrested and questioned. He had also deposed that 30 liters of aluminum container was seized, a two liter steel vessel was also found and three tins of 15 liter capacity was also taken from the custody and possession of the accused.

Crl.A. 546 OF 2003 Though he has been cross-examined nothing has been brought out to discredit the evidence and the chemical examiner's report also revealed that it contains ethyl alcohol. Now it has to be stated that the evidence of PW6 is very convincing and mere denial or mere turning of hostile by the independent witnesses cannot be a ground for an acquittal in Abkari cases. It has also been held in the decision reported in Sivaraman v. State of Kerala (1981 KLT S.N. Case No.17 page 9) that if such evidence is intrinsically reliable and inherently probable the Court is certainly competent to look into it to arrive at a decision. Therefore I do not find any error committed by the Court below and it has appreciated the materials on record correctly and arrived at a decision and therefore the conviction and sentence does not call for any interference. Hence the appeal lacks merit and the same is dismissed.

M.N. KRISHNAN, JUDGE.

ul/-

Crl.A. 546 OF 2003 M.N. KRISHNAN, J.

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J U D G M E N T

9th July, 2009