IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 CRL.A.No. 655 of 2003() ------------------------------------ SC.150/1999 of ADDL. SESSIONS COURT (ADHOC I ), PATHANAMTHITTA .................... APPELLANT(S): ACCUSED --------------------- RAVEENDRAN @ RAVI, S/O. BHASKARAN NAIR, KOIPPURATH VEEDU, ANGADICKAL VADAKKEMURI, ANGADICKAL VILLAGE. BY ADV. MR.B.RAMAN PILLAI RESPONDENT(S): COMPLAINANT -------------------------- STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C RL.MP. NO.4271/2003 IN CRA. NO.655/2003 DISMISSED 13/08/2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 655 OF 2003 = = = = = = = = = = = = = = = Dated this the 13th day of August, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed by the Addl. District and Sessions Judge, Adhoc-I, Pathanamthitta in S.C.150/99. The accused was charged for an offence u/s 55(a) of the Abkari Act and was convicted thereunder and was sentenced to undergo rigorous imprisonment for a period of one year and a fine of Rs.1,00,000/- and in default to undergo further imprisonment for a period of six months. It is against that decision the accused has come up in appeal. 2. The points that arise for determination are: (1)Whether the materials are sufficient to convict the accused u/s 55(a) of the Abkari Act? (2) In case of guilt, is the sentence excessive? Points 1 and 2: 3. Heard the learned counsel for the appellant as well as the Prosecutor. The learned counsel for the appellant had Crl. Appeal NO. 655 OF 2003 -:2:- very strongly contended before me that the procedural formalities that is mandatory under the provisions of the Abkari Act has not been complied with and the evidence is lacking to connect the accused with the crime. He had also taken me through the various documents in this case. The evidence is that of PW4 and PW2. PW4 is a Sub Inspector of Police who had detected the offence. He had deposed before Court that on 28.8.97 while he was on patrol duty on getting reliable information he proceeded to the place and found the accused in possession of a 10 litre can. Though the accused attempted to escape he was apprehended and the liquid in the Can was smelt and tasted and it was found to be illicit arrack. It is deposed that the sample was taken in a 180 ml bottle, sealed and the Can was also sealed. It is also stated that the accused as well as the witnesses signed the label. He also speaks about the factum of production of the material objects before Court on the very next day, forwarding it to the chemical analysis laboratory and the report of the chemical analyst and the chemical analyst's report would reveal that it contained 28.27% by volume of ethyl alcohol. He had been Crl. Appeal NO. 655 OF 2003 -:3:- cross examined on the points regarding the location, from where the accused was apprehended etc. In the cross examination also he reiterates about the taking of the sample. But he admits that he was not able to see label in MO1 at the time of cross examination. He also denied the suggestion that his evidence that there was seal is incorrect. He also speaks that in 161 statement the word 'seal' cannot be seen. PW2 is the police constable who had accompanied PW1. He had also spoken in line with PW4. He had been also cross examined at length. He had also stated about the apprehension, seizure, sampling, sealing and other aspects. He admits that in MO1 his signature is not there. He had also stated that sample was taken in a 180 ml bottle. PWs.1 and 3 are independent witnesses, as usual, had turned hostile. 4. Learned counsel for the appellant very strongly contended before me that the word 'seal' is significantly absent in Ext.P1 and therefore it is indicative of the factor that nothing had been done methodologically and when it is not sealed it goes against the provisions and therefore the accused should be acquitted. It is true that the word 'seal' is not seen Crl. Appeal NO. 655 OF 2003 -:4:- in Ext.P1 but the Sub Inspector of Police who had conducted the seizure and sampling had registered the crime on the very same day within 15 minutes and it is seen clearly written therein that the sample is sealed in the presence of the accused and the witnesses. The accused was produced on the very next day before the Court and the remand report also gives a very clear picture about the same. Just because the word 'seal' has not seen used in Ext.P1 it does not lead to the conclusion that it was not sealed at all. We have to take into consideration that officials are performing their duty and there is a presumption u/s 114 of the Evidence Act that it is done in the ordinary course of its nature. Further there is no axe to grind for PW4 against the accused. When the sample bottle was received by the chemical laboratory it is seen that seal on the bottle was in tact and found tallied with the sample seal provided. In this case it has also to be stated that the crime was registered on 28.8.97 at 7.45 p.m. the material objects had been produced before Court on the very next day, i.e., 29.8.97. There is no delay at all. Under ordinary circumstances if the bottles are not sealed it would have been Crl. Appeal NO. 655 OF 2003 -:5:- noted by the office of the Magistrate Court. So just because the absence of the word 'seal' in Ext.P1 mahazar, I am not inclined to accept the learned counsel's argument that it has not been sealed at all. 5. So far as the evidence of PWs.2 and 4 are concerned there are no material contradictions and no inconsistencies. So far as PWs.1 and 3 are concerned they have also turned hostile. This Court in the decision reported in Sivaraman v. State of Kerala (1981 KLT S.N. Case No.17 page 9) has considered this question and had held that it has become a habit for independent witnesses to turn hostile for the reasons best known to them. In such circumstances the Court held that the evidence of the official witnesses can be accepted provided they stand the meticulous scrutiny of the Court and they satisfy the conscience of the Court. From the materials available I find their evidence is trustworthy and intrinsically reliable. So I find necessary ingredients are satisfied to find the accused guilty u/s 55(a) of the Abkari Act. 6. Now turning to the question of sentence. Accused Crl. Appeal NO. 655 OF 2003 -:6:- has been sentenced to undergo a rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default to undergo imprisonment for another six months. When he was questioned u/s 313 it is stated by him that he has got a wife and three children to be looked after and there is no other source of income. Learned counsel for the appellant also prays for leniency considering the poor financial background. It is true that possession of illicit arrack is a social menace but we find that people below the poverty line indulge in selling small quantity of liquor to make their both ends meet. It is not an excuse but in a society one has to always keep a balance between the two and therefore some leniency can be shown in these types of cases so far as the punishment is concerned. Therefore I am inclined to reduce the sentence. The sentence is modified to that of three months and default sentence to that of one month. In the result the Crl.Appeal is disposed as follows: 1) Conviction and sentence u/s 55(a) of the Abkari Act is confirmed. 2) The sentence is modified and the accused is Crl. Appeal NO. 655 OF 2003 -:7:- sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs.1,00,000/- and in default to undergo a further simple imprisonment of one month. 4) The accused is entitled to entitled to set off as contemplated under S.428 Cr.P.C. 5) The lower Court shall execute the sentence. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 655 OF 2003 -:8:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 655 OF 2003 = = = = = = = = = = = J U D G M E N T 13th August, 2009