IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 22ND DECEMBER 2010 / 1ST POUSHA 1932 CRL.A.No. 1117 of 2010(D) ------------------------- SC.1938/2002 of ADDITIONAL SESSIONS COURT (ABKARI CASES), KOTTARAKKARA. .................... APPELLANT(S): -------------- MADHUSOODHANAN, C.NO.4724, CENTRAL PRISON, THIRUVANANTHAPURAM-12 BY ADV. ADV.SYLAJA S.L.[STATE BRIEF] RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. PUBLIC PROSECUTOR SHRI.K.S.SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. Appeal No.1117 of 2010 ----------------------------------------------- Dated 22nd December, 2010. J U D G M E N T This appeal arises from conviction and sentence passed against appellant under Section 8(1) read with Section 8(2) of the Kerala Abkari Act ('the Act' for short) to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default to undergo simple imprisonment for three months. 2. According to prosecution, on 12.4.2001 at about 12.30 p.m., PW1, the Sub Inspector of Police along with the police party was engaged in raid relating to offence under the Abkari Act. When the party reached the place of occurrence, accused was found sItting under a rubber tree, with a can and a glass. On suspicion, the can was opened and examined and it was found to contain arrack. Body search of the accused was conducted and Rs.40/- was seized from his person. 3. The accused did not have any explanation for possession of arrack and hence, he was arrested. The articles Crl.Appeal No.1117/10 2 were seized under Ext.P1 mahazar. Samples were also taken. Crime was registered at the police station and on finding that the place of occurrence lies within the jurisdiction of another police station, the records were sent to that police station. PW2, who is A.S.I. Of police conducted the investigation. After investigation, charge sheet was laid by PW5, who is the Sub Inspector. 4. The court framed charge against appellant under Sections 55(a), 8(1) and (2) of the Act. The prosecution examined PW1 to PW5, marked Exts.P1 to P7 and MO1 to MO3. The accused did not adduce any evidence, but he contended that he was implicated in this case on detecting an abandoned contraband article from an estate, while he was proceeding to his house. 5. On an analysis of the evidence in detail, the trial court found that prosecution proved that arrack was seized from the possession of accused, as alleged by prosecution and the court held that there is nothing on record to disbelieve the Crl.Appeal No.1117/10 3 testimony of PW1 and PW3. 6. The accused was undefended and hence Adv.Smt. Sylaja S.L. was appointed as State Brief. Heard both sides. Perused the records. Learned defence counsel argued that the only eye witness is PW4 and he turned hostile to the prosecution. PW4 has no case that he had seen the incident, but he only signed in a blank paper. Therefore, the evidence of the official witnesses may not be relied upon, it is argued. 7. Learned defence counsel also submitted that appellant is not involved in any other case. Even according to prosecution, there is nothing to indicate that any sale took place, it is pointed out. An abandoned article was detected and petitioner is falsely implicated in this case, it is submitted. It is also pointed out by learned defence counsel that PW3 an official witness admitted that in the estate, contraband articles used to be found in abandoned state and cases used to be registered and the offender would be traced out only thereafter. 8. Learned Public Prosecutor argued that the Crl.Appeal No.1117/10 4 evidence adduced in this case sufficiently establish the allegations made against appellant. The only fact that PW3 admitted that abandoned articles used to be seized etc. are not at all sufficient to discard the evidence that appellant was found with the contraband article. There is only suggestion made regarding abandoned article etc., but there is nothing on record to infer that this is a false case. 9. On going through the evidence and records in this case, I find that PW1, the Sub Inspector and PW3, the A.S.I., gave evidence relating to seizure of contraband articles from accused fully corroborating each other. Both of them deposed that on 12.4.2001, they found the accused sitting beneath a rubber tree and he was having in his possession, one can containing arrack and a glass. They also stated that accused had no explanation for possession of the contraband article. Their evidence is not discredited in cross-examination. There is no explanation for accused why those witnesses would perjure against him. For the only reason that they are official witnesses, Crl.Appeal No.1117/10 5 it may not be proper to discard their evidence. 10. Of course, a suggestion is made that contraband article was found in an abandoned state and it was seized from the place of occurrence and the accused, who was proceeding along the way to his house was implicated falsely in this case. PW3 admitted that there used to be cases in which abandoned contraband articles falling under the Abkari Act are seen and cases registered etc., as pointed out by learned defence counsel. But, it is relevant to note that according to PW3, accused used to be traced out in such cases and proceeded against. 11. But, in this case, it was a spot arrest. Though suggestions are made to show that it is a false case, such suggestions alone may not be sufficient to hold that the officials falsely foisted a case against appellant. The appellant has not made any complaint against any of the officials in this case before any authority. For the only reason that independent witness did not speak anything about the detection of the Crl.Appeal No.1117/10 6 crime, the evidence of PW1 and PW3 cannot be discarded. 12. PW4 is an independent witness and he has stated that he has signed in Ext.P4 mahazar. In the cross- examination, he stated that he signed in a blank paper and that he did not see the accused being arrested or the arrack being recovered. But, he has no explanation why he has signed in a blank paper. Taking all these facts into consideration, I find no reason to interfere with the finding. The sentence is only simple imprisonment for one year and to pay a fine of Rs.1,00,000/- which is only reasonable. Hence, the conviction and sentence do not call for any interference. This appeal is dismissed. K.HEMA, JUDGE. tgs