- (1.) (Prayer: This Criminal Appeal has been filed under Section 374(2) of Criminal Procedure Code as against conviction and sentence imposed in S.C.No.94/2002 dated 04.07.2002 by the learned Additional District Sessions Judge (Fast Track Court No.5), Tiruppur and to set aside the same.)The sole appellant, who stood charged for offences punishable under Sections 4(1)(a) and 4(1)(i) of the Tamil Nadu Prohibition Act and an offence punishable under Section 4(1-A) of Tamil Nadu Prohibition Act and convicted for offences punishable under Section 4(1)(aa) read with Section 4(1)(b) and Section 4(1)(i) read with Section 4(1)(c), with simple imprisonment for a period of six months and a fine of Rs.2,000/- with a default sentence of one month simple imprisonment in case of default in payment for the offence under Section 4(1)(aa) read with Section 4(1)(b) and Simple imprisonment for a period of two months and a fine of Rs.1,000/- with a default sentence of one week simple imprisonment in case of default in payment for the offence punishable under Section 4(1)(i) read with Section 4(1)(c) of Tamil Nadu Prohibition Act and acquitted of the offence punishable under Section 4(1-A) of Tamil Nadu Prohibition Act, has brought-forth this appeal under Section 374 Cr.P.C. against the above said conviction and sentence.
(2.) THE facts leading to the filing of the present criminal appeal, in brief, as follows:-In a case registered as Cr.No.2530/2000 on the file of PEW, Avinashi Unit, Avinashi, one Thiru.N.Sampathkumar, Inspector of Police of the said PEW Unit submitted a final report after completion of investigation on 28.03.2001 alleging that the appellant herein/accused had committed the following offences: i) an offence punishable under Section 4(1)(i) of Tamil Nadu Prohibition Act ii) an offence punishable under Section 4(1)(a) of Tamil Nadu Prohibition Act and iii) an offence punishable under Section 4(1-A) of Tamil Nadu Prohibition Act. THE same was taken on file by the learned Judicial Magistrate, Avinashi (in-charge) as PRC No.35/2001. After furnishing the copies of the records relied on by the prosecution under Section 207 IPC, the learned Judicial Magistrate committed the said case for trial under Section 209(a) to the Principal Sessions Judge, Coimbatore Sessions Division, Coimbatore as one of the offences, namely an offence punishable under Section 4(1-A) of the Tamil Nadu Prohibition Act was exclusively triable by a court of session. THE learned Principal Sessions Judge, Coimbatore Sessions Deivision, took it on file as S.C.No.94/2002 and made it over to the Assistant Sessions Judge (Sub Judge, Tiruppur) for disposal according to law. Subsequently, after constitution of Fast Track courts in the State of Tamil Nadu and one at Tiruppur, the case was transferred to the file of the Additional District and Sessions Judge (Fast Track Court No.5), Coimbatore Sessions Division, Tiruppur by the order of the learned Principal Sessions Judge, Coimbatore dated 30.04. 2002 made in his proceedings No.673/2001. After the case was thus transferred to the file of the Additional District and Sessions Judge (Fast Track Court No.5), Coimbatore Sessions Division at Tiruppur, the said trial court framed charges:-a) for an offence punishable under Sections 4(1)(a) and 4(1)(i) of Tamil Nadu prohibition Act Andb) for an offence punishable under Section 4(1-A) of Tamil Nadu Prohibition Act.THE appellant herein/accused pleaded not guilty. As many as five witnesses were examined as P.Ws.1 to 5, eight documents were marked as Exs.P1 to P8 and six material objects were produced as M.Os.1 to 6 on the side of the prosecution in order to substantiate the charges framed against the appellant herein/accused. After completion of recording the evidence on the side of the prosecution, the appellant herein/accused was questioned under Section 313(1)(b) of Cr.P.C regarding the incriminating materials found in the evidence adduced on the side of the prosecution. He denied them as false and once again reiterated that he was innocent. No witness was examined and no document was marked on the side of the appellant herein/accused. The learned trial judge heard the arguments advanced on either side, considered the evidence brought before it in the light of the said arguments and upon such consideration, recorded a finding that the prosecution had not proved the second charge, namely the charge for an offence punishable under Section 4(1-A) of Tamil Nadu Prohibition Act. However, it came to a conclusion that charge no.1, namely the charge for offences punishable under Section 4(1)(a) and 4(1)(i) stood proved beyond reasonable doubt. But, at the same time, the learned Trial Judge held that the proof of the said charge would invite separate punishment under Sections 4(1)(b) and 4(1)(c) of the Prohibition Act. The court below recorded a conviction for offences punishable under Sections 4(1)(a), 4(1)(aa) and 4(1)(i). After examining the appellant herein/accused under Section 235(2) of Cr.P.C, though the appellant herein/accused was convicted for offences punishable under Sections 4(1)(a), 4(1)(aa) and 4(1)(i) of the Tamil Nadu Prohibition Act, the court below imposed a sentence of six months simple imprisonment and a fine of Rs.2,000/- along with a default sentence of one month simple imprisonment for the offence punishable under Section 4(1)(b) and two months simple imprisonment and a fine of Rs.1,000/- along with a default sentence of one week simple imprisonment under Section 4(1)(c) of the Tamil Nadu Prohibition Act, as indicated supra.
(3.) AS against the said judgment of conviction and order of punishment, the appellant herein/accused has come forward with the present appeal on various grounds set out in the appeal petition. Advancing arguments on behalf of the appellant, Mr.C.Ramkumar, learned counsel submitted that the judgment of the court below convicting the appellant herein/accused for the above said offences was against law, weight of evidence and probabilities of the case that the court below failed to take note of the fact that the very document setting the law in motion, namely FIR was not proved by examining the author of the complaint that the court below failed to note that there were material contradictions in the evidence adduced on the side of the prosecution, which would improbablise the case of the prosecution or at least give rise to a reasonable doubt regarding the prosecution version that the court below simply brushed aside the contention of the appellant herein/accused that the charge as framed against the appeal could not be maintained that the court below failed to note that the case was one foisted for the purpose of securing an order of detention under Act 14 of 1982 and that the court below created utter confusion which would be apparent from the variation from the offence with which the appellant stood charged and the penal provision under which he was punished by the court below.;