Conviction under the Abkari Act requires clear evidence of involvement; mere presence and suspicion do not suffice for establishing guilt.

J U D G M E N T

As the above appeals are arising out of the same judgment and preferred by the different accused in the very same sessions case and the question of facts and law involved are identical, these appeals are heard together and being disposed of by this common judgment.

2. The allegation against the accused is that at about 5.45 a.m.

on 7.2.2008 at Kuttupuzha Excise Check Post, the accused were found importing 7084 litres of spirit in 222 plastic cans by concealing the same beneath the onion sacks loaded in a lorry bearing Regn.No.MH-06 AC/7148 and thereby the accused have committed the offence punishable under Section 55 (a) of the Abkari Act and consequently, crime No.5 of

2008 was registered in the Iritty Excise Range.

3. On completing the investigation, a report was laid in the Judicial First Class Magistrate Court, Mattannur and thus, C.P.No.38 of 2009 was instituted therein and the learned Magistrate, by his proceedings :-2:-

dated 3.8.2009 in the above proceedings committed the case to the Sessions Court wherein cognizance was taken for the said offence and made over the same to the Sessions Court, Thalassery as S.C.No.463 of 2009 for trial and disposal. The first accused was in custody from the date of the incident. When the case was taken in the trial court, the first accused was produced and second and third accused were present. Thus, after hearing the prosecution as well as the defence, the learned Judge of the trial court framed a formal charge for the offence punishable under Section 55A of the Abkari Act against the accused and when the same was read over and explained to the accused, they pleaded not guilty and consequently, the trial was proceeded further during which the prosecution adduced its evidence by examining Pws.1 to 13 and producing Exts.P1 to P29 documents. MO1 material object is also produced. Finally, the trial court with the following observations, “However, this Court is not fully satisfied by the investigation team as no significant efforts were put in, in order to find where actually the source of spirit is or to where it had been transporting. It is a serious defect on the part of the investigation officers as they themselves through their disgraced omissions lost a prospective opportunity to trigger out the master brains behind the black lobbies of spirit Mafia. This :-3:-

Court finds thus the case as discreditable to the investigation department. Yet still, this can't be a reason for refusing the conviction as the crime committed by the accused are complete as according to the explanations of Section 55A of the Abkari Act ”

found that all the three accused were found guilty under Section 55 (a) of the Abkari Act . On such conviction, all the accused are convicted and sentenced to undergo rigorous imprisonment for six years and to pay a fine of `3 lakhs each under Section 55 (a) of the and in default of payment of fine, they are directed to undergo simple imprisonment for further period of one year each. Set off is allowed.

4. Challenging the above finding, conviction and sentence, the first accused, who is undergoing imprisonment, preferred Crl.A.No.1215 of 2011 and accused Nos.2 and 3 respectively filed Crl.A.No.2016 and 2014 of 2010. As the first appellant is undergoing imprisonment and he preferred the appeal from jail, as directed by this Court, the Registry has appointed Advocate Sri.K.S.Arunkumar, as State Brief to prosecute the appeal on behalf of the first accused. Accused Nos.2 and 3 prosecuted their appeal by engaging thereown Advocates and Advocate Sri.Nireesh :-4:-

Mathew appeared for second accused, who preferred Crl.A.No.2016 of 2010 and the Sr.Counsel Sri.C.C.Thomas appeared for third accused in Crl.A.No.2014 of 2010. Learned Public Prosecutor Sri.N.Suresh appeared for and on behalf of the State. Thus, I have heard learned counsel for the appellants as well as the learned Public Prosecutor for the State and I have perused the judgment under challenge.

5. As I indicated