IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 CRL.A.No. 974 of 2002() ------------------------------------ SC.292/2000 of IIIRD ADDL. SESSIONS COURT (ADHOC), THRISSUR .................... APPELLANT(S): ACCUSED --------------------- ASHOKAN, S/O.VELAYUDHAN, VALIATH HOUSE, WEST CHALAKUDY VILLAGE AND DESOM, THRISSUR DISTRICT. BY ADVS.MR.P.VIJAYA BHANU MR.P.M.RAFIQ RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CRL.MP. NO.7871/2002 IN CRA. 974/2002 DISMISSED 05.06.2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A.TO JUDGE TSS M.N. KRISHNAN, J. --------------------------- CRL.A.NO.974OF 2002 ------------------------------ Dated this the 5th day of June, 2009 JUDGMENT This appeal is preferred against the conviction and sentence passed in SC.No.292/2000 of the Third Additional Sessions Judge (Adhoc), Fast Track Court-I, Trichur. The accused was found guilty under Sections 55(a) and (i) of the Abkari Act and sentenced to undergo R.I for two years and to pay a fine of Rs.One lakh and in default, to undergo imprisonment for six months imprisonment. 2. It is the case of the prosecution that on 2.1.1999 at 5.45 p.m the accused was found in possession of 600 ml of arrack in four bottles each and 300 ml of arrack in 3 bottles each and was also found to be in possession of Rs.150/= as the sale proceeds and thereby it is alleged that he has committed the offences mentioned above. The defence is of a total denial. In the court below, PWs 1 to 3 and DW1 were examined. Exts. P1 to P7 and Ext.D1 were also marked. MOs 1 to 4 were also marked. 3. The points that arise for determination in the appeal are 2 CRL.A.NO.974/02 whether the court below was right in finding the accused guilty under Sections 55(a) and (i) of the Abkari Act and if so, what is the proper punishment. 3. Point: It is the case of the prosecution that the accused was found to be in possession of 4 bottles of arrack containing 600 ml each and 3 bottles of 300 ml each. It is also stated that he was in possession of Rs.150/= as the sale proceeds of the illicit arrack. In order to prove the case, PWs1 and 4 are examined. PW1 is a Police Constable attached to Vettilappara Police Station and he had deposed before the court that on 2.1.1999 he had gone along with the C.I and party and when they reached near Monipilly branch canal they saw a person carrying a plastic bag and also seeing them he ran away but he was followed and was caught hold of from the paddy plot and brought back to the place where he was originally found and thereafter on search and seizure, the bottles mentioned above were seized and on opening, tasting and smelling, it was found to be illicit arrack and thereafter liquid from all the bottles were taken in three sample bottles sealed and seizure mahazar was prepared. He had been severely cross examined 3 CRL.A.NO.974/02 regarding the place of occurrence. A reading of the deposition coupled with the sketch prepared by the village officer is made use of by the learned counsel for arguing the point. Here is a case where there would be two places of occurrence. First is the place where the police saw the accused standing and second is the place from where the police caught hold of the accused. According to the prosecution version he was brought back from the paddy plot to the original place from where he had been seen and thereafter the seizure etc were done and samples were taken. So the place of occurrence shown in the sketch as on the road cannot be said to be wrong for the reason that it is from that place really the things had been seized. PW1 in his cross examination had deposed that the liquid was smelt and tasted from the place where the accused originally stood. So, the evidence of PW1 does not suffer from any serious infirmity as to material points required in the case. 4. PW3 is the Circle Inspector of Police who had detected and laid the charge sheet before the court. He had also deposed about the finding of the accused near the Monipilly branch canal road, the attempt of the accused to flee away 4 CRL.A.NO.974/02 from the incident, caught hold of him and thereafter brought him back to the road and then searching and seizing of the bottles, taking sample out of the bottles, sealing it and preparing the mahazer etc. were done. So, the evidence of PW3 also clinches the issue regarding the prosecution case. I had meticulously gone through the cross examination . There is nothing seriously brought in the cross examination to discredit the evidence of this witness. The only attempt is to create some confusion regarding the place of occurrence. As stated by me earlier, one cannot be wrong if it is stated the place from where he was actually seen is the place. He had also spoken about the sampling and sealing correctly. Therefore, the evidence of PWs 1 and 3 if accepted, it would prove the case of the prosecution. It is true that no independent witnesses are examined in this case. As is known generally, in these type of cases independent witnesses refuse to support the prosecution. But what has to be analysed is the evidence of the official witnesses. When the evidence of the official witnesses are analysed and that too a person who had detected and laid the charge, the court has to be extremely cautious and careful. The court has to 5 CRL.A.NO.974/02 meticulously scan through the evidence to find out the intrinsic reliability of the same. I had read the evidence of PWs 1 and 3 in quite extenso and there is nothing in it and they have no axes to grind against the accused and they were only discharging their official duties. In the absence of any other circumstance, it is not possible to reject their evidence by just classifying them as interested evidence. Learned counsel for the appellant then argues before me that the appellant was in enmical terms for the reason that he was conducting a petty shop in the compound of a temple and there was some altercation or difference of opinion between the managing committee of the temple and the accused and that they had called the police and handed over the accused to them. In support of that, DW1 had been examined. But his evidence looks artificial and unacceptable. So, from these materials, I arrive at a conclusion that the court below has properly considered the evidence on record and had arrived at a decision regarding the guilt of the accused under Sections 55 (a) and (i) of the Abkari Act. 5. Now let me consider about the sentence. The accused was 45 years at the time of the incident. He has a big 6 CRL.A.NO.974/02 family to look after. There are no previous criminal antecedents brought to the notice of the court. So, in such circumstances, I am inclined to show some leniency and therefore, I reduce the sentence of imprisonment to six months each under Sections 55 (a) and (i) which shall run concurrently. So far as the fine is concerned, one has to be impose the statutory minimum of Rs. One lakh but I reduce the default sentence to 2 months instead of 6 months. 6. In the result: 1. The criminal appeal is disposed of . 2. The finding of guilt under Sections 55(a) and (i) of the Abkari Act is confirmed. 3. Sentence is modified and the accused is sentenced to undergo R.I for a period of 6 months each under Sections 55(a) and (i) of the Abkari Act, which will run concurrently. He is also directed to pay a fine of Rs.One lakh and on default, he shall undergo S.I for a period of 2 months. The court below shall execute the sentence. M.N. KRISHNAN, JUDGE cl 7 CRL.A.NO.974/02 8 CRL.A.NO.974/02