IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 31ST OCTOBER 2008 / 9TH KARTHIKA 1930 CRL.A.No. 2039 of 2008() ---------------------------------- SC.826/2007 of ADDL. SESSIONS COURT (ADHOC), KOLLAM CP.148/2005 of JUDL.MAGISTRATE OF FIRST CLASS, SASTHAMCOTTA .................... APPELLANT(S): ---------------------- SHANMUGHAN, C.NO.2571, CENTRAL PRISON, TRIVANDRUM. BY ADV. SMT.NEEMA.T.V.(S.B)/ RESPONDENT(S): ------------------------- STATE OF KERALA, REPRESENTED BY A PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SRI. P.A.SALIM, THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN J - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No.2039 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of October, 2008. J U D G M E N T This is an appeal from the jail, preferred by the accused in S.C. No.826/2007 on the file of the court of Additional District Sessions Judge (Adhoc Court-I), Kollam, challenging the conviction and sentence imposed against him. 2. The prosecution case is that on 22.6.2004 at about 10.55 a.m., the accused was found in possession of 10 litres of arrack for sale at the southern side of the house of Kottakkattu Padinjattathil Sadasivan Pillai, Pulikulam muri, Sooranadu Vadakke Village. On the basis of the said allegation, Crime No. 65/2004 was registered in the Sasthamcottah Excise Range for the offences under Sections 8(1) & (2) and 55(a) of the Abkari Act. On completion of investigation, the final report was laid before the Judicial First Class Magistrate Court, Sasthamcottah, where C.P. No. 148/2005 was instituted. As per the order dated 27.7.2007 in C.P.No.148/2005, the learned Magistrate committed the case to the Sessions Court and the learned Sessions Judge made over the case to the Court of the Principal Assistant Sessions Judge, Kollam, from where it was Crl. Appeal No.2039 of 2008 - 2 - transferred to the Trial Court. On the appearance of the accused and after hearing him a formal charge was framed under Section 8(1) & (2) of the Abkari Act, which was read over and explained to the accused, to which he pleaded not guilty. Thereafter the prosecution adduced the evidence such as the oral evidence through PWs 1 to 6 and documentary evidence such as Exts.P1 to P8 and marked MO1 series. On questioning the accused under Section 313 of the Code of Criminal Procedure, he denied all the incriminating circumstances, which emerged through the prosecution witness. According to him, the MO1 series was taken from Sakthikulangara puncha and foisted case against the accused. After considering all the facts and circumstances involved in the case and also on the basis of the prosecution evidence, trial court found that the accused was guilty of offence, punishable under Section 55(a) of the Abkari Act and he was accordingly convicted for the said offence. After hearing him, he was sentenced to undergo rigorous imprisonment for a terms of two years and to pay a fine of Rs.1,00,000/-. He was also directed to undergo simple imprisonment for a period of six months, in case of default in payment of the fine amount. The above conviction and sentence are challenged in this appeal by the accused, who is continuing imprisonment in pursuance of the impugned Crl. Appeal No.2039 of 2008 - 3 - judgment. 3. According to the prosecution, PWs 1 and 2 were in patrol duty on 22.6.2004, at the road side leading to Thamaakulam, 30 meters on the southern side of the house of Kottakkattu Padinjattathil Prakashan Pillai, they saw the accused coming from the road towards southern side from their opposite direction. Though the accused tried to escape from the scene, he was intercepted and on examination found that he was in possession of a black can having a capacity of 10 litres and it contained liquid. When the liquid examined in the presence of witnesses, detecting officer by taste and smell, PW1 identified the same as arrack. Since the accused was found in possession of the illicit arrack, he was seized from the spot itself and the contraband article were seized after taking samples. Ext.P1 is the arrest notice and Ext.P3 is the arrest memo. Exts.P1 to P3 proved through PW1, Preventive Officer, who detected the crime. According to PW1, when the proceedings are completed, the detecting party reached in the Excise Range Office and handed over the accused and all other documents including the contraband article to PW4. PW2 is an Excise Guard attached to the above Excise Range, who was accompanying PW1 and PW2 deposed that Ext.P2 Mahazer was prepared in the presence of PW3 and PW5, who have attested Crl. Appeal No.2039 of 2008 - 4 - Ext.P2 Mahazer. When PW2 was examined, he corroborated the evidence of PW1 with respect to all the prosecution aspects. PW4 deposed that he had received the property, accused and records on 22.6.2004 at about 2.15 p.m. and accordingly PW4 prepared Ext.P4 Occurrence report, Ext.P5 Remand report, Ext.P6 and Ext.P7 forwarding note. Through PW4, Ext.P6 property list and Ext.P7 forwarding note, all these documents were produced before the committal report on 22.6.2004. On the basis of Ext.P7 forwarding note, sample was sent from the court for Chemical analysis and accordingly, Ext.P8 report was obtained, in which stated that the sample contained 39.90% ethyl alcohol. Though the prosecution produced PW2 and PW5 as independent witnesses to prove the detection of the offence, role of the accused and the seizure of the contraband articles and arrest of accused, they turned hostile towards the prosecution. Eventhough, PW3 and PW5 turned hostile there is no legal bar in accepting the evidence of PW1 and PW2 regarding the seizure or the arrest. There is no contradiction between the evidence of PW1 and PW2. It is also the case of the prosecution that immediately after the arrest and detection of the crime, the accused, contraband article, documents were produced before the PW4, who in turn produced the accused and other articles and documents before Crl. Appeal No.2039 of 2008 - 5 - the court. Thus the prosecution case is in tact and the allegation against the accused is proved beyond reasonable doubt. Nothing was brought out on record to take a different view in deviating from the findings of the trial court. Consequently the conviction entered by the trial court is confirmed. 4. With respect to the sentences, it is submitted that the same is disproporionate to the offences alleged and therefore a lenient view may be taken. Going by the records of the case it appears that the accused/appellant has not involved in any previous case and there is no conviction on his record. But considering the facts and circumstances involved in the case, I am of the view that a modification can be made with respect to the sentence. From the record, it appears that the accused was arrested and released only on 16.10.2004. It is also clear as per the record based upon the impugned judgment that he was undergoing imprisonment from the date of the judgment i.e. 16.7.2008 till today. Thus going by the records, it can be seen that the accused has already undergone about seven months imprisonment as under trial prisoner as well as the imprisonment pursuant to the impugned judgment. 5. In the light of the above facts and circumstances of the case, the sentence is reduced from two years to six months. Crl. Appeal No.2039 of 2008 - 6 - Since the fine amount imposed is minimum amount, no interference is called for, but the default sentence is re-fixed as one month instead of three months. Appellant/accused is entitled to get set off under Section 428 of the Code of Criminal Procedure. As the appellant/ accused had already undergone more than seven months imprisonment, he is entitled to get release from the jail, forthwith. Therefore there will be a direction to release the appellant/accused forthwith if he is not required in any other case. Accordingly, the appeal is dismissed confirming the conviction, but subject to the above modification with respect to the sentence. V.K.MOHANAN, JUDGE rhs