JUDGMENT

The appellant was convicted by the Additional Sessions Court-III, Kasaragod, for an offence punishable under Section 55(a) of the Abkari Act, 1077 and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1 lakh with a default sentence of rigorous imprisonment for six months. Challenging the said judgment of conviction and order of sentence, this appeal has been filed under Section 374(2) of the Code of Criminal Procedure, 1973.

2. This appeal was admitted on 05.02.2014. As per order in Crl.M.A.No.798 of 2014, the sentence imposed on the appellant was suspended and he was released on bail, subject to the conditions ordered therein.

3. The charge framed against the appellant is that at

4.30 p.m. on 16.04.2010 he was found in possession of 12 bottles of Indian Made Foreign Liquor (IMFL), each containing 180 ml. The bottles were labelled ‘Magic Blended Fine Whisky’ and ‘for sale in Karnataka only’. The appellant was so found on the eastern side of the shop of one Santharam, which bears door No.1/112 of Velloor Grama Panchayat. It was alleged that he possessed the liquor for the purpose of unauthorised sale.

4. The prosecution examined PWs.1 to 5 and proved Exts.P1 to P13. The defense set up by the appellant was that he was framed in the case without any basis and nothing has been seized from his possession. He alleged that he was arrested from the house of his brother and falsely implicated in the case.

5. PW4 is the detecting officer. He was the Excise Special Squad Circle Inspector, Kasaragod. On 16.04.2010 while he along with his subordinates was on patrol duty along Nettanige-Baje Road, he saw the appellant coming in the opposite direction holding a plastic bag. They intercepted the appellant and on inspection, found 12 bottles of liquor in the bag. These bottles have a capacity of 180 ml. On convincing himself that the bottles contained liquor, he prepared a sample of 350 ml. and seized the entire articles. The sample as well as other articles were properly sealed and labelled. In order for seizing the articles, he prepared Ext.P1 seizure mahazar. Ext.P2 is the arrest memo under which the appellant was arrested. Ext.P7 is the information memo regarding the arrest. Coming back to the station, the accused along with the contraband was entrusted with PW3, the Excise Inspector, Badaiduka, who registered the crime. Ext.P3 is the crime and occurrence report. PW3 deposed in court that he immediately had forwarded the accused and the record to the court.

6. PW1 is a Preventive Officer accompanied PW4 at the time of occurrence. PW1 also deposed in detail regarding the arrest of the appellant and seizure of the contraband from his possession. It was PW3, who submitted the sample before the court. On the next day itself, he submitted the sample before the court. It is also in evidence that the seized articles were produced before the authorised officer, who in turn produced the same before the Judicial Magistrate of First Class, Kasaragod, along with the necessary inventory. Ext.P10 series are the compact disc and photographs certified by the Magistrate regarding their authenticity.

7. PW2 is an independent witness examined by the prosecution to prove the seizure of the contraband from the possession of the appellant and also his arrest. He admitted to have signed Ext.P2 arrest memo. But he denied his signature in Ext.P1 mahazar. He did not also state regarding the seizure of anything from the possession of the appellant. He has thus deposed against the case of the prosecution. The learned Public Prosecutor is seen to have cross-examined him to elicit evidence in support of the prosecution, but he was not successful. Evidence of PW2 does not render much help to the case of the prosecution, except to the extent that the searching party had prepared Ext.P2 at the place of occurrence.

8. Oral testimony of PWs.1 and 4 tally each other.

Their evidence is supported by Ext.P1 mahazar, Ext.P2 arrest memo