JUDGMENT

The appellants are the accused Nos.1 to 4 in S.C. No.456/2005 on the file of Additional Sessions Court, Fast Track Court – I, Palakkad. The aforesaid case arises from crime No.176/97 of Nenmara Police Station, which was registered against the appellants herein under Sections 57A(1)(iii), (2) and 3 of the Abkari Act.

2. The prosecution case against the appellants is as follows:

The appellants 3 and 4/accused 3 and 4 were licensees of toddy shop No.T.S.191 at Olippara in Kayaradi Village in Chittur Taluk during the year 1997-98. The 1st appellant was running the aforesaid shop at the relevant time based on an oral agreement made between him and the 3rd and 4th appellants. The 2nd appellant was the salesman in the said toddy shop at the relevant time. On 13.09.1997 at 5.15 p.m., the Inspector of Police, Nenmara, conducted an inspection in the said toddy shop based on some information and found that the toddy sold in the aforesaid premises contained diazepam, which is a noxious substance likely to endanger human life. The 2nd appellant, who was present at the time of inspection, was arrested, and the articles were seized. Based on the same crime was registered and during the course of which other accused persons were also arrested. After completing the investigation, the final report was submitted before the Judicial First Class Magistrate Court, Alathur, where it was taken into the file as C.P. No.29/2002. After completing the legal formalities, the case was committed to Sessions Court, Palakkad. Later the same was made over to Additional Sessions Court, Fast Track Court – I, Palakkad, where it was tried as S.C. No.456/05. 3. To establish the prosecution case, PWs 1 to 6 were examined. Ext.P1 to P6 were marked, and MO1 series were identified.

4. After the closure of prosecution evidence, the appellants were examined under Section 313 of Cr.P.C. and the incriminating materials brought out during the course of the trial were put to them, which they denied. No defence evidence was adduced. After evaluating materials, the learned Sessions Judge found that the appellants were guilty of the offence and sentenced to undergo rigorous imprisonment of three years each and to pay a fine of Rs.25,000/- and in default of payment of fine to undergo rigorous imprisonment for six months more under Section 57A(1)(iii) of Akbari Act. His order of conviction and consequential sentence is under challenge in this appeal.

5. Heard Sri.Nireesh Mathew, learned counsel appearing for the appellants and Sri.Sudheer Gopalakrishnan, learned Public Prosecutor appearing for the State.

6. Learned counsel for the appellants contends that no seizure mahazar is seen prepared or marked by the prosecution, which is a crucial lacuna in their case. It is further submitted by him that, even though the articles were allegedly seized from the possession of the appellants on 13.09.1997, the same was produced before the court only on 08.10.1997. No explanation is forthcoming about the delay in producing the same and the nature of the safe custody of the aforesaid article during the relevant period. It is also pointed out that no property list evidencing the production of articles before the court is also seen marked. Another contention put forward by the learned counsel for the appellant is that there is absolutely no evidence indicating that the seizure was effected from inside the premises of the licenced toddy shop as no scene mahazar or scene plan was prepared while effecting such seizure. It is also pointed out that as far as the 1st appellant is concerned, he was roped in as an accused, only based on the statement of the 2nd accused, who stated that it was the 1st appellant who is running toddy shop. No materials indicating his management of the toddy shop is produced. In such circumstances, learned counsel seeks interference in the finding of conviction entered by the Sessions Court.

7. On the other hand, the learned Public Prosecutor would oppose the aforesaid