IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN THURSDAY, THE 15TH DAY OF DECEMBER 2011/ 24TH AGRAHAYANA 1933 CRA.No. 2149 of 2003 (D) ---------------------------------- SC.408/2001 of ADDL.SESSIONS COURT (FAST TRACK)-II, PALAKKAD .................... APPELLANT / ACCUSED: RAMAN, S/O. CHUKKAN, MOZHIYOTTUPADI HOUSE, VADANAMKURISSI DESOM, ONGALLUR- II VILLAGE, OTTAPALAM TALUK. BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT /COMPLAINANT: STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM REPRESENTING THE EXCISE INSPECTOR, PATTAMBI. BY PUBLIC PROSECUTOR SMT. S. HYMA THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 15-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VPV P.S. GOPINATHAN, J. ---------------------------------------------------------- Crl.A.No.2149 of 2003 ---------------------------------------------------------- Dated this the 15th day of December, 2011 JUDGMENT Appellant was convicted by the Additional Sessions Judge (Ad hoc II), Palakkad in Session's Case.No.408/2001 for offences under Sections 55(a) and 8(2) of the Abkari Act and sentenced to rigorous imprisonment for 3 years and a fine of Rs.1,00,000/- with a default sentence of simple imprisonment for 6 months. Assailing the above conviction and sentence, this appeal is preferred. 2. The prosecution case is that at 5.30 pm on 13/7/1998 while PW1, a Preventive Officer attached to the Excise Range Pattambi, moving on patrol duty along with PW2, a guard and others, found the appellant carrying MO1 jerry can with two litres of illicit arrack, near Mannembathur Bhagavathi Temple, Vadanamkurussi Desom, Ongallur Village. PW1 arrested the appellant and seized the contraband for which Ext.P1 seizure mahazar wherein PW2 is an attestor was prepared. 180 milli litres was taken as sample and sealed then and there. MO1 with balance liquid was also sealed. Returning to the office, PW1 registered a case for which Ext.P3 crime and occurrence report was prepared. Appellant was produced before the Magistrate along with Ext.P4 remand report and Ext.P5 thondy list. Thondy articles were also produced before the Magistrate on the same day. PW4 ,the Excise Inspector, who was on leave on the date of seizure, on Crl.A.No.2149 of 2003 2 return from leave took over the investigation. After completing the investigation, he filed the charge sheet alleging above said offence before the Judicial Magistrate of the First Class, Ottappalam. The learned Magistrate, on finding that the offence alleged is exclusively triable by Court of Session, by order dated 17/4/2001, committed the case to the Court of Session, Palakkad. From there, the case was made over to the Additional Sessions Judge. 3. Responding to the process issued from the Additional Sessions Court, the appellant who was later released on bail entered appearance. When charge was framed and read over, the appellant pleaded not guilty. Therefore, he was sent for trial. On the side of the prosecution, PW1 to 4 were examined. Ext.P1 to P7 and MO1 were marked. When questioned under Section 313 (1) (b) of the Code of the Criminal Procedure, the appellant took a defence of total denial. No defence evidence was let in. On appraisal of the evidence, the Additional Sessions Judge arrived at a conclusion of guilt, consequent to which the appellant was convicted and sentenced as above. 4. I have heard Adv.Sri.Alex Thombra, the learned counsel appearing for the appellant and Smt.S.Hyma, the learned Govt.Pleader. Perused the judgment impugned and the evidence on record. Crl.A.No.2149 of 2003 3 5. PW1 would depose that on 13/7/1998, he got an information that at Vadanamkurussi Desom, dealings in illicit arrack was going on . He along with PW2 and party proceeded to the spot. When they reached near Bhagavathi Temple, the appellant was found coming across with MO1 in his right hand. Seeing PW1 and party, the appellant attempted to turn away. The appellant was intercepted, and the contents in MO1 was tested by smell and taste. It was convinced that it is nothing but illicit arrack. Appellant was arrested for which Ext.P2 arrest memo was prepared. MO1 with liquid was seized for which Ext.P1 seizure mahazar was prepared. 180 milli litres was taken as sample and it was sealed. The remaining quantity of arrack was sealed in MO1. Returning to the office, a case was registered for which Ext.P3 crime and occurrence report was prepared. Excise Inspector was on leave and PW1 was holding the charge of Excise Inspector. 6. Appellant along with thondi articles were produced before the Magistrate on the same day. PW2, the guard would corroborate with the evidence of PW1. PW3, an independent witness though admitted his signature in Ext.P1 and the presence of appellant at the spot did not support the seizure of MO1. The learned Additional Sessions Judge on appraisal of the evidence of PWs 1 to 3 believed the prosecution case. I was taken through the evidence by the learned counsel for the appellant. Their evidence is meticulous and no material is disclosed to Crl.A.No.2149 of 2003 4 disbelieve the prosecution case. It is pertinent to note that material objects were produced before the Magistrate on the same day. So, there is little chance for any tampering. In Ext.P7, report of the Chemical Examiner, it is certified that the sample contained 18.6% by volume of Ethyl Alcohol. This being the evidence on record, I find that the Additional Sessions Judge had not committed any error in appreciating the evidence. The conviction is based on cogent evidence and requires no interference. 7. Having due regard to the fact that the appellant was 40 years old at the time of the occurrence and that the quantity of the contraband seized is only 2 litres. I find that the appellant is entitled to a little leniency and that substantive sentence of rigorous imprisonment for six months with the minimum fine imposed by the learned Additional Sessions Judge would meet the ends of justice. In the result, this appeal is allowed in part. While confirming the conviction, substantive sentence is reduced to rigorous imprisonment for six months. Fine imposed with default sentence is sustained. Trial Court shall see the execution of the sentence and report compliance. P.S.GOPINATHAN, JUDGE su