JUDGMENT

In this appeal filed under Section 374(2) Cr.P.C., the appellant who is the accused in SC.No.1103 of 2012 on the file of the Court of Session, Kasaragod, challenges the conviction entered and sentence passed against him for the offence punishable under Section 8(2) of the Abkari Act, 1 of 1077 (the Act).

2. The prosecution case is that on 20/07/2011 at 05:30 p.m., the accused was found in possession of about 4 litres of illicit arrack in a black plastic can having a capacity of 5 litres in contravention of the provisions of the Act. He was found on the western side of the road in front of Ayyampara Government U.P. School situated by the side of Villarampathi-Maravankavu- Chakodu road in Periya Village, Hosdurg. Hence the accused as per the final report was alleged to have committed the offence punishable under the aforementioned Section.

3. PW1, the Preventive Officer, Excise Circle Office, Hosdurg, the detecting officer, had arrested accused and produced the contraband articles before PW5, the Excise Inspector, Excise Range Office, Hosdurg, who registered crime no.53/2011, that is, Ext.P7 crime and occurrence report. PW6, the Assistant Excise Officer, Excise Range Office, Hosdurg conducted the investigation and on completion of the investigation submitted the final report before the jurisdictional magistrate.

4. On appearance of the accused, the jurisdictional magistrate after complying with all the necessary formalities contemplated under Section 209 Cr.P.C., committed the case to the Court of Session, Kasaragod. The case was taken on file as S.C.No.1103/2012. Thereafter, the case was made over to the Additional District and Sessions Judge -III, Kasaragod for trial and disposal. The trial court on 21/12/2013 framed a charge under Section 8(1) read with Section 8(2) of the Act, which was read over and explained to the accused to which he pleaded not guilty.

5. On behalf of the prosecution, PW1 to PW6 were examined and Exts.P1 to P13 were got marked in support of the case. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence.

6. As the trial court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence and adduce evidence in support thereof. No oral evidence was adduced by the accused.

7. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found the accused guilty of the offence contemplated under Section 8(1) of the Act and hence sentenced him to undergo simple imprisonment for one year and to pay fine of ₹1,00,000/- and in default simple imprisonment for three months for the offence punishable under Section 8(2) of the Act. Set off has been allowed under Section 428 Cr.P.C. Aggrieved, the accused has come up in appeal.

8. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the accused by the trial court are sustainable or not.

9. Heard both sides.

10. I make a brief reference to the evidence relied on by the prosecution in support of the case. PW1, the Preventive Officer, Excise Circle Office, Hosdurg deposed that on 20/07/2011 he along with his party were on patrol duty. By about 05:30 p.m., when they reached in front of the Government U.P. School, Ayyampara, situated by the side of Villarampathi- Maravankavu- Chakodu road, they saw the accused coming from the opposite side with a black plastic can in his hand. On seeing the Excise party, the accused became perplexed and made an attempt to turn and walk away. PW1 and team intercepted the accused and in the presence of two witnesses they examined the plastic can having a capacity of 5 litres. The contents of the can on smelling and tasting was found