JUDGMENT

Dated this the 26th day of August, 2021 Appellant was the accused in S.C. No.241 of 2012 on the files of the Sessions Court, Palakkad. By the judgment under challenge, the appellant was found guilty for the offence under sections 8(1) and 8(2) of the Abkari Act and was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-, in default to undergo simple imprisonment for three months.

2. The prosecution case, as is seen from the judgment under challenge, is that on 22.9.2011 at 17.45 hours the accused was found in possession and transporting 5 litres of illicit arrack at Appupadi-Peruvakkadavath public road, in front of his house and thereby committed the offence as alleged.

3. After investigation and filing of final report, the learned Judicial First Class Magistrate, Ottapalam found that the offence involved is triable exclusively by the court of Session and hence committed the same for trial to the Sessions Court, Kozhikode.

4. Prosecution examined PWs 1 to 4 and marked Ext.P1 to Ext.P10. The glass seized from the accused was marked as MO1.

After analyzing the evidence adduced, the learned Sessions Judge found the accused guilty and sentenced him as mentioned earlier.

5. I have heard Adv.M.T.Sureshkumar, learned counsel for the appellant as well as Adv.M.K.Pushpalatha, learned Public Prosecutor.

6. Learned counsel for the appellant strenuously argued that the prosecution case is liable to be discarded since the same is built upon the confession statement alleged to have been given by the accused as mentioned in Ext.P3 mahazar. He further submitted that the alleged confession recorded in Ext.P3 has prejudiced his cause since the learned Sessions Judge was swayed by the alleged confession. The learned counsel further attacked the prosecution case by referring to the absence of material object containing the contraband alleged to have been seized from the accused. It was submitted that in the absence of the can marked in evidence, it remains a mystery as to how the alleged sampling could have been relied upon to convict the accused. The learned counsel further submitted that the case of the prosecution does not inspire confidence since the official witnesses had not clearly deposed in tune with the prosecution case. The learned counsel asserted that the contradiction in the evidence of PW1 and PW2 strikes at the root of the very prosecution case itself and thus canvassed for an acquittal of the accused. In the alternative, the learned counsel sought for a lenient view to be taken regarding sentence, considering the long lapse of time and the reasonably young age of the accused. 7. The learned Public Prosecutor on the other hand submitted that the alleged confession statement, as seen recorded in the mahazar, had not been relied upon by the prosecution to create a charge of manufacture of contraband liquor nor had the court while framing the charge, utilized the said statement to form a charge against the accused for manufacture of liquor. She further asserted that a reading of evidence of PW1 and PW2 clearly showed that there is no contradiction much less material contradiction in their depositions and on the other hand, it was submitted that, the depositions were in harmony with each other. It was further submitted that the accused does not deserve any leniency considering the nature of evidence adduced and the circumstances of the case.

8. I have perused the records marked in evidence as Ext.P1 to Ext.P10. The can containing the contraband has not been marked in evidence. However, by Ext.P10, an inventory was prepared with photograph of the can and the can was handed over to the Excise Department itself, for disposal in accordance with law. Thus, there is no merit in the contention that failure to mark the can renders the conviction illegal. Ext.P3 mahazar contains the details of the procedure adopted for sampling. Proper seal was affixed on the sample and the contraband. The sample seal