IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 CRL.A.No. 327 of 2003() ----------------------------------- SC.290/1999 of ADDL. SESSIONS COURT (ADHOC), KALPETTA .................... APPELLANT(S): ACCUSED --------------------- RAMAYYAN, S/O.MADHAVANKUTTY, AGED 40 YEARS, VALAVAYAL, NOOLPUZHA, SULTHAN BATHERY TALUK, WAYANAD DISTRICT. BY ADV. MR.N.J.ANTONY RESPONDENT(S): STATE -------------------------- 1. EXCISE INSPECTOR, SULTHAN BATHERY RANGE, WAYANAD DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.327 OF 2003 ------------------------------ Dated this the 10th day of July, 2009 JUDGMENT This appeal is preferred against the conviction and sentence passed by the Additional Sessions Judge (Adhoc), Kalpetta in S.C.No.290/1999. It is the case of the prosecution that the accused had committed the offence under Section 55 (a) of the Abkari Act. He was charge sheeted, found guilty and convicted thereunder and sentenced to undergo R.I for one year and to pay a fine of Rs. One lakh and in default of the same, to undergo further S.I for three months. It is against that decision, the appeal is preferred. 2. The points that arise for determination in the appeal are (1) whether there are sufficient materials to find the accused guilty under Section 55(a) of the Abkari Act (2) Is there anything to interfere with the decision rendered by the court below. 3. Points 1 and 2. Heard the learned counsel for the appellant as well as 2 CRL.A.NO.327/03 the Public Prosecutor. It is the case of the prosecution that on 26.8.1997 at about 2.30 p.m, the accused was found in possession of 5 litres of arrack at Mukkuthikunnu near the forest gate. The evidence of PWs 1 and 2 is relied upon to prove the case of the prosecution. 4. PW1 is the Excise Range Inspector. According to him, while on patrol duty, he had found the accused in a suspicious circumstance. Therefore, he was intercepted, apprehended and searched and it was found that the accused was carrying a plastic can with 5 litres of arrack in it and by smell and taste it was found to be arrack. Therefore, samples were taken in two bottles of 180 ml capacity and it was labeled, sealed and he also prepared Ext.P1 mahazer. 5. PW2 is the person who had accompanied PW1 and his evidence is also exactly in line with that of PW1. It is true that independent witnesses had not supported the prosecution. From the materials available, it can be seen that the evidence of PWs 1 and 2 are quite convincing and being official witnesses, their evidence has to stand scrutiny meticulously and on doing 3 CRL.A.NO.327/03 so, I find that it is reliable and on the basis of which the conviction can be had even though the independent witness had turned hostile. PWs 1 and 2 had spoken in clear terms about the way in which the sample was taken and sealed and the chemical analyst’s report revealed that it contained ethyl alcohol by volume. So, the court below had only approached the matter in the correct perspective and arrived at a decision that the accused was found in possession of 5 litres of illicit arrack and therefore, has committed the guilt under Section 55 (a) of the Abkari Act. The court below has convicted the accused to undergo R.I for one year and to pay a fine of Rs. One lakh, with default sentence of S.I for 3 months. It cannot be said that to be on the higher side. I am also informed that the accused has already suffered the sentence. So, on the basis of the above facts, I find that there is merit in the appeal. The criminal appeal lacks merit and it is dismissed. M.N. KRISHNAN, JUDGE 4 CRL.A.NO.327/03 cl M.N. KRISHNAN, J. --------------------------- CRL.A.NO.327 OF 2003 ------------------------------ 10th day of July, 2009 JUDGMENT 5 CRL.A.NO.327/03 6 CRL.A.NO.327/03 M.N. KRISHNAN, JUDGE cl 7 CRL.A.NO.327/03