IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 15^TH DAY OF SEPTEMBER 2021 / 24TH BHADRA, 1943 CRL.A NO. 631 OF 2012 AGAINST THE JUDGMENT DATED 24.4.2012 IN SC 168/2009 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THALASSERY, KANNUR APPELLANT/ACCUSED:

AANATH KUNHIRAMAN, S/O.KUNHAMBU, AANATH HOUSE, NUCHIYAD AMSOM, MUNDANNUR, KANNUR DT.

BY ADV P.SHEEBA P. NARAYANAN RESPONDENT/COMPLAINANT:

STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

BY SRI ARAVIND V MATHEW-PP THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON

8.09.2021, THE COURT ON 15.9.2021 DELIVERED THE FOLLOWING:

J U D G M E N T Dated this the 15^th day of September, 2021 This is an appeal filed u/s 374(2) of the Cr.P.C against the judgment of conviction and sentence passed by the Sessions Court, Thalassery in SC No.168/2009 dated 24^th April, 2012.

2. The accused/appellant faced trial for an offence u/s

8(1) of the Abkari Act. The prosecution case in short is that on 7/6/2008 at 7.15 p.m, the accused was found in possession of 1½ litres of arrack in a 5 litre jerry can in the courtyard of his house situated in Karimbala Colony in Mundanoor of Nuchiyad Amsom in contravention of the Abkari Act and Rules.

3. PW5, the Sub Inspector of Police, Ulikkal Police Station along with PW1, police constable while on patrol duty got information that the accused was selling arrack at the courtyard of his house in Karimbala Colony in Mundanoor. Accordingly, they reached the spot and the accused was intercepted and 5 litre jerry can filled with illicit arrack of 1½ litres was seized. The accused was arrested at the spot. The sample of arrack was taken in two 375 ml bottles. It was sealed, packed and labelled in the presence of the witnesses who were examined as PW2 and PW3. The balance arrack in jerry can was also seized and sealed. Ext.P1 seizure mahazar was prepared. Exts.P2 and P4 are the arrest memo and inspection memo prepared at the time of arresting the accused. Thereafter PW5 registered crime against the accused for the offence punishable u/s 8(1) of the Abkari Act. Ext.P5 is the FIR. The accused and seized articles were produced before the Magistrate Court. The sample was sent for chemical analysis and after the chemical analysis, the report was received which was marked as Ext.P8. The report shows that the sample contained ethyl alcohol. After completing the investigation, PW5 filed final report before the Magistrate. The learned Magistrate after complying with the statutory formalities committed the case for trial to the Court of Sessions.

4. The accused appeared before the court below. After hearing both sides, the court below framed charge against the accused u/s 8(1) of the Abkari Act. The charge was read over and explained to the accused who pleaded not guilty.

5. The prosecution examined PWs1 to 5 and marked Exts.P1 to P9. On completing the prosecution evidence, the accused was questioned u/s 313 of Cr.P.C. He denied all the incriminating circumstances brought against him during evidence. DW1 and DW2 were examined and Ext.D1 was marked on the side of the defence. After trial, the court below found the accused guilty u/s 8(1) of the Kerala Abkari Act and convicted the accused for the said offence. The accused was sentenced to undergo rigorous imprisonment for a period of 6 (six) months and to pay a fine of `1,00,000/- in default to suffer simple imprisonment for one month u/s 8(2) of the Abkari Act as per the impugned judgment. The said judgment is under challenge in this appeal.

6. Heard Smt.Sheeba, the learned counsel for the appellant and Sri.Aravind V. Mathew, the learned Public Prosecutor.

7. The learned counsel for the appellant assailed the finding of guilt passed against the appellant as illegal and unsustainable contending that there is undue delay in producing the seized contraband articles before the court, the benefit of which should, definitely, go to the accused. The counsel further submitted that the