IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA FRIDAY, THE 24TH DAY OF JUNE 2011/3RD ASHADAH 1933 CRL.A.No. 1943 of 2003 ( ) -------------------------- AGAINST THE JUDGMENT IN SC.536/2001 of ADDL.DISTRICT COURT (FAST TRACK) (ADHOC-I), ALAPPUZHA. APPELLANT/ACCUSED: -------------------- SASI @ GOPAKUMAR, S/O.UNNIKRISHNAN NAIR, THERIPURATHUKIZHAKKETTIL, VALLIKUNNAM, MAVAELIKKAR TALUK. BY ADVS.SRI.P.J.JOSEPH SRI.M.D.SASIKUMARAN SRI.GEORGE MATHEW RESPONDENT/COMPLAINANT: ------------------------ STATE OF KERALA, REPRESENTED BY EXCISE RANG INSPECTOR, MAVELIKKARA, THROUGH PUBLILC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. PUBLIC PROSECUTOR SRI. K.S. SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-06-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. Appeal No. 1943 of 2003 ----------------------------------------------- Dated this 24th day of June, 2011. JUDGMENT The appellant was charge-sheeted for offence under Section 8 of Abkari Act. He was convicted under Section 8 of Abkari Act and sentenced to undergo rigorous imprisonment for 1 year and 6 months and fine of Rs.1,00,000/- and in default of payment of fine to undergo rigorous imprisonment for 6 months. 2. According to prosecution, on 10.6.1998 at about 5.30 p.m. accused was found carrying a bag, which contained 32 plastic covers, on the public road. PWs 1 and 2 were on patrol duty and they apprehended the accused and, on examination of the bag, it was found to contain 32 packets of arrack each containing 100 ml. The accused had no explanation for possession of the same and hence he was arrested from the spot and the articles were seized under a mahazar. A case was registered and after investigation he was charge-sheeted for offence under Section 8 of the Abkari Act. 3. The prosecution examined PWs. 1 to 5 and marked Exts.P1 to P3 and MO1 to MO3. Accused examined DW1. The [Crl.A.No.1943/2003] 2 trial court found that the evidence of PWs. 1 and 2, the official witnesses, is convincing and hence appellant was found guilty of offence under Section 8, since he possessed and transported arracks. 4. Heard both sides. Perused the records. Learned counsel for the appellant argued that the evidence of DW1 will reveal that the articles were seized two days prior to the incident and those belong to one Vanajakshy Amma but the accused was later falsely implicated in this case. He has no connection with the article seized in this case, it is submitted. The evidence of PWs. 1 and 2 has to be looked into as against the evidence of DW1 in which event it can be seen that the accused is not guilty as alleged, it is submitted. 5. Learned Public Prosecutor argued that the evidence of PWs. 1 and 2 is not discredited in cross-examination. They have no animosity to cook up false case against the appellant. There is clear and cogent evidence to show that accused was in possession of arrack on 10.6.1998 and not on 8.6.1998. Evidence of DW1 is not believable, it is submitted. 6. On hearing both sides and on going through the evidence in this case, I find that the evidence PWs 1 and 2, the official [Crl.A.No.1943/2003] 3 witnesses, is consistent with each other. Their evidence reveal that on 10.6.1998 at 5.30 p.m. accused was found walking along the road, carrying a bag which on examination contained 32 polithiene cover containing about 100 ml. arrack. Three packets were taken from the above articles and those were cut open and examined by taste and smell and it was found to be arrack. 7. It is also revealed from the evidence of PW1 and PW2 that two samples were taken and those were seized under Ext.P1 mahazar. The other articles were seized, packed and sealed. The articles were sent for chemical analysis and those were reported to contain ethyl alcohol as revealed form Ext.P2, the Chemical Analysis Report. The evidence of PWs. 1 and 2 could not be shattered by cross-examination. The trial court has rightly relied upon their evidence. 8. As far as the evidence of DW1 is concerned, it is revealed from his evidence that he signed the mahazar Ext.P1 and PW3 and he was also present at the time when he signed the mahazar. He has no case that the articles were seized on 8.6.1998. In the chief examination, he stated that he signed in Ext.P1 which contained some writing. DW1's case in cross- examination is that there was no writing in Ext.P1 and he has no [Crl.A.No.1943/2003] 4 case as to why he signed in Ext.P1. 9. Except the evidence of DW1, there is nothing to show that the articles were seized on 8.6.1998. The evidence of DW1 is not quite satisfactory since he has no explanation for signing in Ext.P1 in which the details of seizure, arrest etc. are seen recorded. There is nothing on record to show that PWs.1 and 2 havd any reason to cook up a false story against accused. This case was investigated into by PW4. 10. PW5 also deposed that the accused and the articles and materials were produced before him on 10.6.1998. The evidence of Pws.1, 2, 4, and 5 is intact and there is no reason to disbelieve them. In such circumstances, it is clearly established that the appellant was in possession of arrack, as alleged by prosecution on 10.6.1998. Therefore, there is no ground for interference in the conviction entered against the appellant under Section 8 of Abkari Act. 11. Learned counsel for appellant submitted that appellant is a handicapped person. He is not involved in any other case. Appellant has got married after the incident. The article involved is only 3.2 litres of arrack. The provisions of Probation of Offenders Act may be applied in this case and maximum leniency [Crl.A.No.1943/2003] 5 may be shown in the case of sentence, it is submitted. 12. Learned Public Prosecutor submitted that he is not involved in any other offence of similar nature. The sentence imposed is one year and six months and fine of Rs. 1 lakh and the default sentence is 6 months. Considering the facts and circumstances of the accused, I find that sentence can be reduced and hence the following order is passed: 1) Conviction passed under Section 8 of Abkari Act is confirmed. 2) The sentence is modified and appellant is sentenced to undergo rigorous imprisonment for 3 months and to pay file of Rs. 1 lakh and in default of payment of fine to undergo simple imprisonment for 2 months. This appeal is partly allowed. Sd/- K.HEMA, JUDGE. Krs. // True Copy // P.S. to Judge.