IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 CRL.A.No. 1174 of 2003() ----------------------------------- SC.381/2002 of ADDL. SESSIONS COURT (ADHOC-III), THRISSUR ............................................................... APPELLANT(S): ACCUSED ------------------------------------- KUTTAN @ PULLUKUTTAN @ VASU, S/O. RAMAN, KUNNATHVALAPPILL HOUSE, AKAMALA PARAPPURAM, ENGAKKAD VILLAGE, THALAPPILLY TALUK, THRISSUR. BY ADV. SRI.ROBSON PAUL RESPONDENT(S): COMPLAINANT ------------------------------------------------ STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV.SRI.THOMAS JOHN AMBOOKEN, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.1174 OF 2003 -------------------------- Dated this the 26th day of June, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the conviction and sentence passed by the Addl.Sessions Judge, Fast Track Court-I, Trichur, in S.C. 381/02. The accused was charge sheeted for possession of 2 ltrs. of illicit arrack and the court below found him guilty u/s.58 of the Abkari Act and sentenced him to undergo imprisonment for a period of 1 year and to pay a fine of Rs.1 lakh and in default to undergo rigorous imprisonment for a period of 3 months. It is against that decision, the accused has come up in appeal. The points that arise for determination in the appeal are, 1. Whether there are sufficient materials to hold that the accused has committed the guilt u/s.58 of the Abkari Act ? 2. In case of guilt, what shall be the proper quantum of punishment ? CRL.A.No.1174 OF 2003 2 2. Point Nos.1 and 2 :- It is the case of the prosecution that on 6.7.99 at about 11.10 A.M. in front of a tea shop of one Gopalan, the accused was found in possession of 10 ltr. can and he was apprehended and the liquid was seized and examined and it was revealed that it contained 2 ltrs. of arrack by taste and smell and thereafter he was arrested, sample was seized and sealed and produced before the concerned Magistrate. The prosecution had examined Pws.1 to 5. Exts.P1 to P9 and M.O.1 was marked. Ext.P3 is the seizure mahazar. It gives the description, how the accused was found, apprehended and the liquid was seized and sealed. Ext.P7 is the chemical examiner's report. What was sent for chemical examination was, a sealed bottle containing 180 ml. of colourless liquid, which on examination revealed that it contained 9.07 % by volume of ethyl alcohol and the liquid was a colourless liquid with sediments. PW1 and PW5 are the official witnesses who had supported the prosecution. PW1 is the detecting officer and had deposed before the court, how CRL.A.No.1174 OF 2003 3 they found the accused in front of the tea shop of Gopalan and that he was holding a 10 ltr. can which contained 2 ltrs. of liquid which on examination by taste and smell revealed to be illicit arrack. He had also spoken about the fact that, 180 ml. sample was taken and sealed and the remaining liquor was sealed in the container itself. He had been cross examined at length and he would depose that they had gone in a vehicle and had stopped the vehicle about 100 mtrs. before and that the accused did not attempt to run. Then he speaks about the seizure etc. PW5 is the officer who accompanied PW1 and he had also deposed on the very same line regarding the seizure, sampling and sealing. Though he has been cross examined at length, nothing has been brought out to describe his evidence. Pws.2 and 3, two independent witnesses, as usual had turned hostile to the prosecution. The question whether a conviction can be arrived at, on the basis of the evidence of official witnesses alone, had been a subject matter of decisions in very many cases and it has been held that there is nothing wrong in CRL.A.No.1174 OF 2003 4 accepting the same, if the Court is satisfied with the said evidence, that it is inherently reliable after a meticulous scrutiny of the same. I had carefully gone through the evidence of Pws.1 and 5 and they are trust worthy and is acceptable. It has also to be stated that, they have nothing against the accused to foist a false case against him as well. Therefore evidence of Pws.1 and 5 establishes the seizure arrest, as well as the sampling and sending it for examination. 3. It has also to be stated that, the material objects were produced on the very same day, before the concerned Magistrate and it was sent for chemical examination, which revealed the presence of ethyl alcohol in the liquid. So it contained liquor, is proved by Ext.P10. The learned counsel for the appellant very strongly contends before me that, since the liquid seized had sediments at the bottom one can not categorise it as illicit arrack. At the out set it has to be stated that the case of the accused is that, he was not caught hold off at all and no liquor was seized from him. But evidence very CRL.A.No.1174 OF 2003 5 clearly shows that, he was caught hold off with the liquor which when sent for chemical examination revealed that it was a liquor. The mere statement in the chemical analysis report regarding the presence of sediments can not be used as a weapon to dislodge the case of the prosecution and moreover, u/s.58 of Abkari Act, if a person is in possession of liquor, without the permission of lawful authority, any quantum of liquor is liable to be punished. Therefore, I hold that the learned Sessions had analysed the materials, in correct perspective and had arrived at a proper decision and so the finding of guilt u/s.58 of Abkari Act does not call for any interference. 4. Now let me deal with the question of sentence. The court below has convicted him for a period of 1 year imprisonment with a fine of Rs.1 lakh and a default sentence of 3 months. The learned counsel would submit that the accused is under very dare circumstances and leniency has to be shown. When questioned u/s.313 of Cr.P.C., he had stated that he had a 75 year old mother and two daughters to be looked after and CRL.A.No.1174 OF 2003 6 there is no other earning member in the family. It is true that the possession of contraband liquor is a social menace but at the same time, when people under poor circumstances are sent to jail by making their families virtually as destitutes it will have impact in the larger interest of the society. Therefore in order to strike a balance, it is desirable that a reasonable punishment need be imposed in such cases. After applying my mind and hearing the learned counsel for the accused and the prosecutor, I feel that the sentence can be reduced to 3 months, u/s.58 of Abkari Act with a fine of Rs.1 lakh and a default sentence of one month. In the result, the appeal is disposed of as follows :- 1. The finding of guilt u/s.58 of Abkari Act is confirmed. 2. The sentence is modified and the accused is sentenced to undergo simple imprisonment for a period of 3 months and to pay a fine of Rs.1 lakh and on default of which he has to undergo further imprisonment of 1 month. He is also entitled to set off, as CRL.A.No.1174 OF 2003 7 contemplated under S.428 of Cr.P.C. The lower court shall execute the sentence. M.N.KRISHNAN, JUDGE ami.