Possession of illicit arrack is sufficient for conviction under Section 58 of the Abkari Act, despite initial charges under Section 55(a).

O R D E R

Revision petitioner is the accused in C.C.No.597/1997 on the file of the Judicial Magistrate of the First Class-III, Punalur. He was prosecuted by PW5, the Sub Inspector of Police Kunnicodu Police Station accusing offence under Section 55(a) of the Abkari Act with an allegation that at 4.30 P.M. on 17/2/1997, PW5, while moving on petrol duty with police officials found the revision petitioner possessing seven litres of illicit arrack in a jerry can which was marked as MO1.

2. The revision petitioner pleaded not guilty.

Therefore, he was sent for trial. On the side of the prosecution, PWs 1 to 5 were examined. Exhibits P1 to P3 and MO1 were marked. After closing the evidence for the prosecution, when questioned under Section 313 of the Code of Criminal Procedure, he denied the incriminating evidence and advanced a plea of innocence. No defence evidence was let in. The learned Magistrate on appraisal of the evidence arrived at a finding of guilty. Consequently, he was convicted and sentenced to rigorous imprisonment for six months and a fine of Rs.25,000 with a default sentence of simple imprisonment for a further period of three months.

3. Aggrieved by the above conviction and sentence, he preferred Crl.A.No.155/2002 before the Sessions Judge, Kollam. The Third Additional Sessions Judge, to whom the appeal was made over, by the impugned judgment dated 31/1/2006, while confirming the conviction and sentence, dismissed the appeal. Assailing the legality, correctness and propriety of the above conviction and sentence, this revision petition is preferred.

4. I have heard Adv. Smt. P.S.Preetha, the learned counsel appearing for the revision petitioner and Miss. Madhu Ben, the learned Government Pleader. Perused the judgments impugned. The learned counsel for the revision petitioner took me through the evidence on record.

5. PWs 1 and 2, who are attesters to Exhibit P1, denied of having witnessed the arrest of the revision petitioner or seizure of the contraband. PW5 had given evidence in support of the prosecution case. He would depose about the detection, seizure and arrest of the revision petitioner. He had also proved Exhibit P1 seizure mahazar and registration of the case by Exhibit P2 First Information Report. He would further depose that MO1 contained seven litres of illicit arrack. The nature of the same was convinced by smell and taste. 150 mls was taken as sample and it was sealed then and there. The sample was forwarded to the chemical examiner and obtained Exhibit P3 report certifying that the sample contained 29% of the ethyl alcohol by volume. By Exhibit P3, the nature of the liquid seized is well established. There is no case that it was a permitted liquor or acquired from a lawful source. Therefore, it is legitimate to presume that it was illicit liquor. PWs 3 and 4 are the Police Constable and the Head Constable, who were accompanying PW5. They had given corroborating evidence. Though PWs 3 to 5 were subjected to searching cross-examination, no material was disclosed to disbelieve them. There is nothing on record to show that PWs 3 to 5 were any way motivated against the revision petitioner or that the revision petitioner was falsely implicated for whatever reasons.

6. The learned counsel for the revision petitioner, relying upon the decision reported in Ravi v. State of Kerala [2011(3)KLT 353], would submit that there was delay in producing the material objects. In fact no question was put to PW5 as to when the material objects were produced or as to what was the reason for delay, if any. The judgment impugned would show that on verifying the records, the learned Additional Sessions Judge found that the material objects were produced only on 1/3/1997. The charge sheet was produced on 20/3/1997. Charge sheet was filed within 31 days. It is a case of speedy investigation. It appears that there is delay of 13 days in producing the material objects. The evidence of PW5 and the charge sheet would show that PW5 wa