IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 30TH JANUARY 2008 / 10TH MAGHA 1929 CRL.A.No. 1587 of 2007 -------------------------------------- SC.177/2006 of ADDL.SESSIONS COURT (ADHOC) FAST TRACK-III, MANJERI .................... APPELLANT/ACCUSED: KARI, CONVICT NO.4549, CENTRAL PRISON, KANNUR. BY ADV. BABU P.C.[STATE BRIEF] RESPONDENT: STATE OF KERALA, EXCISE RANGE OFFICE, MANJERI. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 1587 of 2007 --------------------------- JUDGMENT Accused, convicted for offence under Section 8 (1) of the Abkari Act and sentenced under Section 8 (2) of the Act to undergo rigorous imprisonment for a term of two years and to pay a fine of Rupees one lakh and in default to undergo simple imprisonment for a term of six months, vide judgment of the Additional Sessions Judge, Fast Track Court No.III (Adhoc), Manjeri dated 3.3.2007 in S.C.No.177/06, is the appellant. He challenges in this appeal the conviction and sentence so passed against him by the court below. The appeal is one filed by the appellant from the Central Prison, Kannur, where he is undergoing the sentence as Convict No.4549. 2. The prosecution case is that at about 4.45 p.m. on 9.8.2003, whils PWs 1 and 2, who ware the Excise Officials, were conducting patrolling, they found the appellant in possession of three litres of illicit arrack in a five litre can in front of CRA 1587/07 2 his house situated at Poovattingal and thereby he has committed an offence punishable under Section 8 (2) of the Abkari Act. 3. Consequent on detection and seizure of illicit arrack from the possession of the appellant, he was arrested and taken to the Excise Range Office, Manjeri, where, PW3 registered the case as Crime No.27/03. On completion of the investigation, final report was laid against the appellant in the Judicial First Class Magistrate's Court, Manjeri and that was taken on file by the learned Magistrate as C.P.No.7/06. The case was committed to the Sessions Division, Manjeri by the learned Magistrate, vide committal proceedings aforesaid and the case was registered as S.C.No. 177/06 in the Sessions Court, Manjeri. Initially, the case was made over to the Court of Assistant Sessions Judge, but, later, the case was withdrawn and made over to the Court of the Additional Sessions Judge, Fast Track No.III (Adhoc), Manjeri CRA 1587/07 3 for trial and disposal. 4. On appearance of the appellant pursuant to the issuance of summons, the court below heard preliminary arguments of the Prosecutor and the counsel for the appellant, framed charge against the appellant for offence under Section 8(1) of the Abkari Act, read over and explained it to the appellant in Malayalam and he was questioned. Thereupon, he pleaded not guilty. Consequently, a trial of the case was conducted by the court below. 5. Prosecution examined PWs 1 to 7, got marked Exhibits P1 to P9 and got identified MO1. On the prosecution closing their evidence, the appellant was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. According to him, he was being taken into custody by the Excise officials from his house in their jeep and foisting this case against him. However, he did not adduce CRA 1587/07 4 any evidence in defence. 6. The court below considered the case in the light of the evidence adduced as aforesaid; found the appellant guilty of the offence under Section 8 (1) of the Abkari Act; convicted him thereunder and sentenced him for the offence under Section 8(2) of the Abkari Act, as already stated. Hence this appeal from Jail by the aggrieved appellant. 7. As the appellant had not engaged any Lawyer of his choice, Advocate Sri.P.C.Babu was appointed on State Brief to argue the appeal on behalf of the appellant. Heard arguments of counsel on State Brief and the learned Public Prosecutor. 8. It is vehemently contended before me by the counsel on State Brief that the case is one foisted against the appellant by the Excise officials; that PWs 4 and 5, who are independent witnesses, have turned hostile and what remains is only the testimonies of PWs 1 and 2, both of whom are the Excise officials, in support of the prosecution CRA 1587/07 5 case; that evidence of PWs 1 and 2, who are respectively a Preventive Officer and an Excise Guard in the Excise Department, without any further corroboration, cannot be accepted for entering into a conviction of the appellant, according to whom, he was being taken into custody by the Excise officials from his house and no seizure of any contraband has been effected from his possession as alleged by the prosecution. 9. PWs 1 and 2 were conducting patrolling in the evening on 9.8.2003 on the instructions of PW7, the Excise Inspector. It is the evidence given by PW1 that while they were conducting patrolling in the jeep along the road towards Kalluruttikkal from Poovathingal Angadi in Poovathingal Desom in Oorangattiri amsom, they saw the appellant standing in front of the house of Kallingal Ramachandran, located 200 metres on the road to Kalluruttikkal, holding a five litre can in his right hand and getting scared on seeing their jeep. According to CRA 1587/07 6 him, he felt suspicion, stopped the jeep, called two persons, who were present on that road and caused the can being obtained from the possession of the appellant; that he opened the cap of the can and then examined the contents in the can by smell and taste and got convinced that it is arrack and consequently they effected arrest of the appellant preparing Exhibit P1 arrest memo in that regard; effected seizure of illicit arrack in the can, preparing Exhibit P2 seizure mahazar in that behalf and gave Exhibit P3 arrest intimation to the wife of the appellant, who came over to the scene of occurrence at that time and that after taking sample of 200 ml. of arrack from the contents in MO1 can in a 375 ml. bottle, the sample bottle as also MO1 were sealed and taken into bandavast and they entrusted the arrest memo, seizure mahazar, acknowledged copy of arrest intimation served on the wife of the appellant as also arrack taken as sample and the balance arrack contained in MO1 can CRA 1587/07 7 with duty Guard Shibu P.Benjamin at Manjeri Excise Range Office. Despite cross-examination, nothing is brought out in the testimony of PW1 to discredit his testimony or to render his testimony unbelievable for any reason whatsoever. 10. PW2, the Excise Guard, who was accompanying PW1 in the detection and seizure, has tendered evidence, corroborating the testimony of PW1 in all material aspects and no discrepancy is brought out in cross-examination of PW2 as well. PW3 was the Excise Preventive Officer in Excise Office, Manjeri during the relevant time. He has deposed that he was in-charge, as the Excise Inspector was on leave and that on receipt of Exhibits P1 to P3, he registered the case as Crime No.27/03, drawing up Exhibit P4 Crime and Occurrence Report and that in the morning on 10.8.2003, he forwarded the records to court and also produced the appellant before court submitting also Exhibit P5 forwarding note to have the sample forwarded for chemical analysis. CRA 1587/07 8 His testimony corroborated the testimonies of PWs 1 and 2 as also of PW6, the duty Guard at the Excise Office, who received the material object, the same, Exhibits P1 to P3 and the affidavit from PWs 1 and 2, kept them in safe custody till next day morning and entrusted it to PW3. Exhibit P5 property list shows that it was produced before the Magistrate on 10.8.2003 and it was directed to be produced before court at 11.00 a.m. on 11.8.2003 and accordingly, it was produced on 11.8.2003. The material objects so produced under Exhibit P5 are 200 ml. of arrack in a bottle of 375 ml. capacity and 2.800 ml. of arrack in MO1 can with labels pasted thereon. The samples were thus, produced before court with the least delay and there is no case for the appellant that the material objects so produced had been tampered with. 11. Exhibit P9 report of Chemical Analysis shows that the sample was received for Chemical Analysis in a sealed packet and further that the CRA 1587/07 9 seals on the bottle were in tact and that they tallied with the sample seal provided. On chemical analysis ethyl alcohol was detected in the sample and the sample was found to contain 48.86% by volume of Ethyl alcohol. 12. PWs 4 and 5 are independent witnesses examined by the prosecution as they are attestors to Exhibit P2 seizure mahazar and they have affixed their signatures also on the labels pasted on the sample as also on MO1. Both PWs 4 and 5 have admitted their signatures on the labels on MO1 and in Exhibits P1 and P2. It is true that they have disowned their statements given to the investigating officer and those are Exhibits P7 and P8. Both PWs 4 and 5 are hostile witnesses. They are brothers and are close relatives of the appellant/accused, as admitted by them and obviously, one cannot expect them to support the case of the prosecution. However, the fact that they were attestors, have come in evidence from CRA 1587/07 10 their testimonies. 13. PW6 was the Duty Guard at the Excise Office, Manjeri and he has given evidence that at 6.45 p.m. on 9.8.2003, Malappuram Special Squad has produced before him MO1 as also the sample bottle along with the case records; that he kept it in safe custody and handed it over to PW3 intimating him of the entrustment by PWs 1 and 2. According to him, there will be about 20 to 30 material objects in the excise office at a given point of time and that they are identified by the label that is affixed thereon. PW7 is the investigating officer and he has given evidence that he has questioned the witnesses and conducted the investigation; that Exhibits P7 and P8 versions were given respectively by PWs 4 and 5 and that on receipt of Exhibit P9 Chemical Analysis Report, he has submitted final report in the case. 14. It is vehemently contended by the learned counsel for the appellant that the excise CRA 1587/07 11 authorities have not made any investigation at all to probe into the source of illicit arrack apart from effecting seizure of arrack in MO1 can and that improbabilises the prosecution case and supports the case of the appellant that he was being taken into custody from his house and that the case was being foisted against him. The mere fact that the excise authorities have not conducted any investigation into the source of liquor in MO1 can held by the appellant cannot lead to a conclusion that seizure of arrack from the possession of the appellant is not genuine and that the case is one foisted against the appellant especially when the evidence in the case establish the offence alleged against the appellant. Hence, I am of the view that conviction by the court below of the appellant for offence under Section 8(1) of the Abkari Act is correct and sustainable and no interference is called for in this appeal and that the conviction of the appellant deserves only to be CRA 1587/07 12 confirmed. 15. Finally, it is contended by the learned counsel for the appellant that the sentence awarded to the appellant is disproportionate and severe as he has been sentenced to undergo rigorous imprisonment for two years over and above imposing the minimum statutory fine of Rupees one lakh with the default sentence of imprisonment for six months. 16. Considering the circumstances of the case; the gravity of the offence as also the quantum of contraband involved in the commission of the offence, I am of the view that the substantive term of rigorous imprisonment awarded to the appellant can be reduced to one year maintaining however, the imposition of fine and the default sentence. 17. In the result, while confirming the conviction of the appellant for offence under Section 8(1) of the Abkari Act, I modify the sentence awarded to the appellant under Section 8 CRA 1587/07 13 (2) of the Act to one of rigorous imprisonment for a term of one year and a fine of Rupees one lakh and in default to undergo simple imprisonment for a further term of six months. This appeal is, thus, allowed in part. Communicate a copy of this judgment to the appellant through the Superintendent of Central Prison, Kannur forthwith. 30th January, 2008 (K.P.Balachandran, Judge) tkv CRA 1587/07 14 K.P.Balachandran, J. --------------------- Crl.A.No.1587 of 2007 --------------------- JUDGMENT 30th January, 2008