J U D G M E N T

This appeal is at the instance of the 2nd accused in SC No.1426 of 2001, on the file of Additional Sessions Judge for the Trial of Abkari Act Cases, Neyyattinkara, challenging his conviction and sentence under Section 58 of the Abkari Act, as per judgment dated 25.06.2006.

2. The appellant along with the 1st accused were charged under Section 58 of the Abkari Act, as on 12.01.2000 evening, they were found in possession and sale of arrack in the tapioca garden owned by the 1st accused. PW4-SI of Police, Vellarada and party detected the offence while doing patrol duty.

3. On appearance of accused Nos.1 and 2 before the trial court, charge was framed against them under Section 58 of the Abkari Act, to which they pleaded not guilty and claimed to be tried. PWs1 to 4 were examined, Exts.P1 to P9 were marked and MOs 1 and 2 were identified. On closure of prosecution evidence, the accused were questioned under Section 313 of Cr.P.C. They denied all the incriminating circumstances brought out in evidence, and DWs 1 and 2 were examined from their side as defence witnesses.

4. On analysing the facts and evidence and on hearing the rival contentions from either side, learned trial court found that, prosecution failed to prove the guilt of A1 beyond reasonable doubt, and so he was acquitted; whereas A2 was found guilty under Section 58 of the Abkari Act, and he was convicted and sentenced to undergo rigorous imprisonment for one year and fine of Rs.1,00,000/-, with a default sentence of rigorous imprisonment for three months. Aggrieved by the conviction and sentence, the 2nd accused has come up with this appeal, stating that the conviction and sentence are bad in the eye of law.

5. Heard learned counsel for the appellant and learned Public Prosecutor.

6. Learned counsel for the appellant would submit that the testimony of the prosecution witnesses was not sufficient to find him guilty under Section 58 of the Abkari Act. The independent witness, PW1 turned hostile to the prosecution, and though she admitted to have seen the Excise officials taking MO1 can from a tapioca cultivation, according to her, the appellant was not seen at that place.

7. The case of the appellant is that, since he refused to say the name of some persons to Police, who were engaged in sale of arrack, he was forcibly taken by Police, and falsely implicated in this case. DWs 1 and 2 were examined from his side, to say that while the appellant was returning home, after his daily work, he was taken by Police, as he refused to say the name of some persons engaged in sale of arrack who ran away on seeing Police. That apart, let us see, whether prosecution succeeded in proving the guilt of the appellant under Section 58 of the Abkari Act.

8. PW4-the detecting officer deposed that while engaged in patrol duty, himself and Police party received information regarding sale of arrack in the tapioca plantation of the 1st accused, and when they reached there, A2 was found selling arrack, by pouring into a glass, and A1 was collecting its sale proceeds. Two persons were there to consume arrack. On seeing the Police party, except the appellant/A2, all others fled away, and he was intercepted along with the can containing about 4 litres of arrack. Being convinced by smell and taste that the liquid in the can was arrack, the can was sealed and seized into custody. Ext.P1 mahazar was prepared at the place of occurrence itself and the appellant/A2 was arrested then and there.

9. Ext.P1 mahazar will not show the specimen impression of the seal used by PW4 to seal the can containing arrack. In the mahazar, it is stated that the can containing arrack was sealed and it was seized. If PW4 had used his specimen impression of the seal while sealing the can containing arrack, that seal might have been affixed in Ext.P1 mahazar also, which is a contemporary document prepared at the scene, and it will give authenticity to the sample, that it was seized and sealed from the place of occu