IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 CRL.A.No. 806 of 2003() --------------------------------- SC.494/1999 of ADDL.SESSIONS COURT (ADHOC II ), KASARAGOD .................... APPELLANT(S): ACCUSED 2 & 3: ---------------------------- RAMA, S/O. MALINKAN, 67 YEARS, KARAKKUZHI, NEAR MOOLAKANDAM, AJANOOR VILLAGE. BY ADV. MR.T.K.VIPINDAS RESPONDENT(S): COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE EXCISE INSPECTOR, HOSDURG. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CRL.M.A. 5118/2003 IN CRA. 806/2003 DISMISSED 14/08/2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 806 OF 2003 = = = = = = = = = = = = = = = Dated this the 14th day of August, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed by the Addl. Sessions Judge, Adhoc-I, Kasaragod in S.C.494/99. Accused was charge sheeted for the offence u/s 55(g) of the Abkari Act and was found guilty and was convicted thereunder. He was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/- u/s 55(g) of the Act. A default sentence of six months was also imposed on him. It is against that decision the accused has come up in appeal. 2. The points that arise for determination are: (1)Whether there are sufficient materials to hold the accused guilty u/s 55(g) of the Abkari Act? (2) In case of guilt what is the proper sentence? Points 1 and 2: 3. Heard the learned counsel for the appellant as well as the Prosecutor. It is the case of the prosecution that at Crl. Appeal NO. 806 OF 2003 -:2:- about 12 noon on 19.8.98 the accused was found to be in possession of 10 litres of wash in a plastic pot near Hanuman Temple. He was apprehended and the liquid was examined which was found to be wash made use for the purpose of distilling illicit arrack. About 500 ml sample was taken in a 750 ml bottle. The accused was arrested and produced before court. The evidence in this matter is that of PW3. He is the person who had detected the crime. He had deposed before court that on that day while they were proceeding they found the accused with a plastic pot. On seeing them as he attempted to move out he was apprehended and the liquid in the pot was tested by taste and smell and it was found to be wash. Thereafter sample was taken and sealed, seizure mahazar was also prepared. He had also stated that the properties were produced before the court on 21.8.1998 and it was sent for chemical analysis and the chemical analyst has stated that the seal on the bottle was in tact and found tallied with the sample seal provided. On examination it was found that the sample contained 12.08% by volume of ethyl alcohol. PW1, an independent witness as usual had turned hostile to Crl. Appeal NO. 806 OF 2003 -:3:- the prosecution. It is the argument that since the independent witnesses had turned hostile the court should be very careful in accepting the evidence official witnesses. In the decision reported in Sivaraman v. State of Kerala (1981 KLT S.N. Case No.17 page 9) this court considered about the said point. The court observed that it has become a habit for the independent witnesses turning hostile in these types of cases. Then the court considered about the acceptability of the evidence of the official witnesses. It was held that when such evidence is scrutinized meticulously and it is found to be trustworthy there is no bar in accepting the same to arrive at a conviction. In this case PW3 has no axe to grind against the accused. He had apprehended the accused on the spot. He had seized the liquid, taken the sample, complied with all the procedural formalities and sample had been produced before court without any delay. The chemical analysts's report revealed that everything was in tact and it contained percentage of ethyl alcohol by volume. So I have no doubt about the intrinsic reliability of the evidence of PW3. Since the accused was found to be in possession of wash which is a Crl. Appeal NO. 806 OF 2003 -:4:- material used for the manufacture of illicit arrack, the conviction u/s 55(g) of the Act is in order and it has to be sustained. 4. Now, turning to the question of sentence. Even at the time of trial in the year 2003, the accused was 64 years and he must be about 70 years by this time. Learned counsel would contend that maximum leniency has to be shown and there is no other criminal antecedents for this person. Taking into consideration the submissions made by the learned counsel, the age of the accused as well as the quantum involved in the case, I am inclined to reduce the sentence to three months and the default sentence to one month. 5. In the result the Crl.Appeal is disposed as follows: 1) Finding of guilt u/s 55(g) of the Abkari Act is sustained. 2) The sentence is modified and the accused is sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs.1,00,000/- and in default to undergo a further imprisonment of one month. Crl. Appeal NO. 806 OF 2003 -:5:- 4) The accused is entitled to set off as contemplated under S.428 Cr.P.C. 5) The lower court shall execute the sentence. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 806 OF 2003 -:6:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 806 OF 2003 = = = = = = = = = = = J U D G M E N T 14th August, 2009