IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K. BABU MONDAY, THE 2^ND DAY OF AUGUST 2021 / 11TH SRAVANA, 1943 CRL.A NO. 2523 OF 2007 AGAINST THE JUDGMENT DATED 30.11.2007 IN SC.NO. 397/2006 OF THE ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE (NDPS ACT CASES), THODUPUZHA, IDUKKI DISTRICT APPELLANT/ACCUSED:

CHELLAPPAN S/O. RAGHAVAN, VALIYAPARAMBIL HOUSE, AYYAPPANCOIL VILLAGE, KALYANATHANDU KARA.

BY ADVS.

SRI.B.PREMOD SRI.SUDHEER GANESH KUMAR.R.

RESPONDENT/COMPLAINANT:

STATE OF KERALA, REP. BY THE EXCISE INSPECTOR, KATTAPPANA RANGE, REPRESENTED, BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

BY SMT.MAYA M.N., PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

K. BABU J.

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Crl.A.No.2523 of 2007 ------------------------------------

Dated this the 2nd day of August, 2021

J U D G M E N T

Challenge in this appeal is to the judgment dated

30.11.2007, passed by the learned Additional Sessions Judge/Special Judge for NDPS Act Cases, Thodupuzha in SC.No.397/2006.

2. By the impugned judgment the accused was convicted of the offence punishable under Section 8(2) of the Kerala Abkari Act.

3. The prosecution case is that on 11.06.2003 at about 06.00 p.m., the accused was found in possession of 3 liters of illicit arrack on the Kattapana-Elappara road near Nariyampara City. The offence was detected by the Excise Inspector, Kattapana.

4. After completion of investigation final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Kattapana. 5. The case was committed to the Sessions Court, Thodupuzha, from where it was made over to the Trial Court. On appearance of the accused charge was framed against him for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offence.

6. The evidence for the prosecution consists of the oral evidence of PWs 1 to 3, Exts.P1 to P9 and Mos.1 to

3.

7. After closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C was recorded. He pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there was evidence against the accused and hence he was called upon to enter on his defence and to adduce evidence, if any, he may have in support thereof.

The learned trial court, after hearing arguments addressed from both sides, found that the accused is guilty of offence under Section 8(2) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of six months and to pay a fine of Rs.1,00,000/-.

8. Heard Sri.B.Pramod, the learned counsel appearing for the appellant/accused and Smt. Maya M.N., the learned Public Prosecutor appearing for the respondent.

9. The counsel for the appellant/accused contended that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence was eventually subjected to analysis at the Chemical Examiner's laboratory.

10. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused.

11. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not.

THE POINT

12. PW2, the Excise Inspector, Kattapana Range, was on patrol duty on 11.06.2003. At about 06.00 p.m., while the Excise team led by PW2 was travelling on the Kattapana-Elappara road at Nariyampara City, the accused was found carrying a plastic cover. The Excise team prevented the accused from moving away. PW2 inspected the plastic bag found in possession of the accused. The plastic bag contained 2 plastic bottles. PW2 ascertained that the 2 bottles contained illicit atta