IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 11TH JULY 2011 / 20TH ASHADHA 1933 CRL.A.No. 1424 of 2010(C) ------------------------- SC.1249/2007 of ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM CP.71/2006 of JUDL.MAGISTRATE OF FIRST CLASS, SASTHAMCOTTA .................... APPELLANT(S): -------------- PRAKASAN PILLAI,C.NO.4988, CENTRAL PRISON, THIRUVANANTHAPURAM. BY ADV. SREEVALSAN V. [STATE BRIEF] RESPONDENTS: --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI P.A. SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11.7.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A No.1424 of 2010 ---------------------------------------- Dated the 11th Day of July, 2011 JUDGMENT The appellant herein is the sole accused in crime No.3/2005 of the Sasthamcotta Excise range for the offence under sections 8(1) and (2) of the Abkari Act and in this appeal he challenges his conviction and sentence for the above offence. 2. The prosecution case is that at about 6.15 p.m on 7.1.2005, the accused was found carrying 1 litre of arrack in a plastic bottle in the road which is proceeding Southwards from Thamarakkulam to Thennalatharayil, near to his house in Pulikkulammuriyil, Sooranadu north Village and thereby committed the offence under section 8(1) and (2) of the Abkari Act. On completion of investigation, report was filed before the Judicial First Class Magistrate court, Sasthamcotta, who took cognizance for the said offence and instituted C.P.No.71/2006 and by order dated 7.11.2007, the learned Magistrate committed the case to the Sessions Court under section 209 Cr.P.C wherein the case is numbered Crl..A.No.1424 of 2010 -:2:- as S.C.No.1249/2007 and made over for trial to the court of Additional District & Sessions Judge, (Adhoc) II, Kollam. Thus on appearance of the accused, after hearing both the accused as well as the prosecution, a formal charge was framed for the offence under section 8(2) of the Abkari Act which was read over and explained to the accused and he pleaded not guilty. The trial was further proceeded during which the prosecution adduced its evidence consists of the testimony of PW1 to PW6 and Exts.P1 to P8 documents. No defence evidence is adduced. Finally, the trial court has found that the prosecution has succeeded in establishing the case against the accused and accordingly he is found guilty under section 8(2) of the Abkari Act and on such finding, the appellant is convicted for the said offence and consequently, he is sentenced to undergo rigorous imprisonment for one year and also to pay a fine of Rs. 1,00,000/- and, in default, he is directed to undergo rigorous imprisonment for three months. It is the above conviction and sentence challenged in this appeal. 3. As the appellant is undergoing imprisonment pursuant to the impugned judgment , he preferred this appeal from the jail and on receiving the same, as ordered by this court, Adv.Mr. Crl..A.No.1424 of 2010 -:3:- Sreevalsan.V was appointed as State Brief so as to prosecute the appeal for and on behalf of the appellant. Thus I have heard counsel appearing for the appellant and the learned Public Prosecutor Sri P.A.Salim appearing for the State. 4. As I indicated earlier, the specific case of the prosecution is that while PWs 1 and 2 were on patrol duty, they found the accused in the road situated near to his house with a plastic bottle in his hands and on entertaining doubt on the basis of the conduct of the accused, he was intercepted and on questioning, PWs 1 and 2 understood that he was in possession of arrack and thereby the accused committed offence punishable under section 8(1) and (2) of the Abkari Act. In order to substantiate the above allegation, mainly regarding the possession and seizure, the prosecution relies upon the deposition of PWs 1 and 2. PW1 is the Excise Inspector who detected the offence. When he was examined, he had deposed in tune with the prosecution allegation and Ext.P1 mahazar, Ext.P2 arrest memo and Ext.P3 arrest notice were proved through PW1. PW2 is the Excise Preventive Officer who was along with PW1 at the time of the detection of the offence and when he was examined, he had Crl..A.No.1424 of 2010 -:4:- deposed in tune with the evidence of PW1. In order to prove the prosecution case, especially regarding the seizure and arrest of the accused, the prosecution has also cited and examined PWs 3 and 4 who are independent witnesses. PW4 flatly turned hostile to the prosecution. Though PW3 has stated that he did not see the seizing of arrack, he admitted his signature in Ext.P1 mahazar. PW5 is the Excise Inspector who registered Ext.P4 occurrence report and laid charge. Besides Ext.P4, Ext.P5 property list, Ext.P6 forwarding note and Ext.P7 Chemical analysis report are also proved and marked through PW5. PW6 is the successor in office of PW5 who conducted the investigation and laid charge. The learned Judge of the trial court believed and accepted the prosecution case and entered into the finding that the prosecution has succeeded in establishing and proving the case against the accused. 5. On the other hand, the appellant and his counsel contended that the appellant/accused is falsely implicated in the crime on the basis of the arrack seized from the nearby Puncha due to extraneous consideration. It is also the contention of the counsel that the trial court is wrong in convicting the appellant Crl..A.No.1424 of 2010 -:5:- simply on the basis of the evidence of the official witnesses since the interested version of those officials witnesses are not supported from any independent source. It is also the submission of the learned counsel for the appellant that the deposition of the official witnesses are vague and contradictory in nature and therefore their version cannot be formed the basis for the allegation. 6. I am unable to accept the contention of the appellant and the counsel. The defence has no case that the accused is implicated in the crime because of any animosity from the part of the official witnesses. The case of the prosecution, as indicated above, would show that the accused was arrested then and there while he was in possession of the contraband article. The seizure and arrest of the accused is proved properly and the evidence of PWs 1 and 2 proved it positively. Though PWs 1 and 2 were subjected to lengthy cross examination, nothing brought on record to discard their version. It is true that, PWs 3 and 4 turned hostile to the prosecution. But simply because the independent witness cited by the prosecution turned hostile, the same is not a ground to acquit the accused. As I indicated Crl..A.No.1424 of 2010 -:6:- earlier, though PWs 1 and 2 were subjected to lengthy cross examination, their evidence remains in tact. No contradiction is brought on record to doubt the veracity of the evidence of PWs 1 and 2. Hence, in the absence of any material or evidence on record to discredit the version of the official witnesses, namely, PWs 1 and 2, I find no fault with the findings of the learned Sessions Judge that the accused is guilty for the offence charged against him, even if there is no independent evidence. In this juncture it is relevant to note that this is not a case where the prosecution has not cited and examined any independent witness to substantiate the case of the prosecution. On the other hand, as evident from the records, it is clear that PWs 3 and 4 were cited and examined to prove the seizure and arrest. Though PW3 turned hostile, he had admitted his signature in Ext.P1 mahazar. The arrest and seizure are supported by the evidence of PWs 1 and 2 and further the correctness of their evidence is ensured by contemporary documents like Ext.P1 mahazar, Ext.P2 arrest memo and Ext.P3 arrest notice. As rightly held by the learned Sessions Judge, there is no rule that unless the evidence of official witnesses is corroborated through independent source, Crl..A.No.1424 of 2010 -:7:- their evidence cannot be relied and acted upon. 7. Going by the prosecution case and the judgment, it is further established that the prosecution has conducted investigation without any delay and the contraband articles were produced in the court without any delay and Ext.P5 property list would show that the properties were reached in the court without delay. Ext.P7 chemical Analysis report which obtained by the court on the basis of the forwarding note would show that what recovered from the accused is illicit arrack In the light of the above discussion and the evidence and materials referred to above, I am of the view that the trial court is perfectly justified in its finding and convicting the appellant for the offence under section 8(2) of the Abkari Act. The sentence of imprisonment imposed in pursuance of the conviction, is only one year rigorous imprisonment and the minimum sentence of fine. Therefore, no interference is warranted with respect to the sentence also. Having regard to the facts and circumstances involved in the case, I am of the view that the appellant/accused is entitled to get set off under section 428 Cr.P.C for the period which he was under custody as an under trial prisoner. Crl..A.No.1424 of 2010 -:8:- Subject to the above order with respect to the set off under section 428 Cr.P.C this appeal is dismissed. V.K.MOHANAN, JUDGE kvm/-