IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 CRL.A.No. 1165 of 2003 ------------------------------ (AGAINST THE ORDER DT. 28/6/2003 IN S.C. NO. 5/1999 BY THE COURT OF ADDL. SESSIONS JUDGE (ADHOC-II), THALASSERY) ........................................... APPELLANT(S): ACCUSED -------------------------------------- PADY JOY ALIAS THOMAS, AGED 48 YEARS, S/O. THOMAS, AYYAMKUNNU AMSOM, EDAPPUZHA, KARIKKOTTAKARI, THALASSERY TALUK. BY ADV. SRI.P.SURESH SRI.C.A.CHACKO RESPONDENT(S): COMPLAINANT ----------------------------------------------- THE SUB INSPECTOR OF POLICE, KARIKKOTTAKARI POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1165 OF 2003 = = = = = = = = = = = = = = = Dated this the 16th day of June, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed in S.C.5/99 of the Addl. Sessions Judge, Adhoc.II, Thalassery. The accused was prosecuted for an offence u/s 55(a) of the Abkari Act. He was found guilty and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.2,00,000/- and in default to undergo rigorous imprisonment for a period of one year. It is against that decision the accused has come up in appeal. 2. Heard the learned counsel for the appellant as well as the Public Prosecutor. The points that arise for determination are; (1) Whether the Court below was justified in convicting the accused u/s 55(a) of the Abkari Act? (2) Is there anything to interfere with the decision rendered and (3) Whether the sentence awarded is proper? CRL.A.1165 OF 2003 -:2:- Points: 3. It is the case of the prosecution that on 15.10.97 at about 7.30 p.m. the accused was found in possession of 55 packets of Karnataka arrack each having a capacity of 100 ml. The Sub Inspector of Police detected the offence seized the articles and took the accused into custody and thereafter it was sent for chemical examination which revealed that it contained volume of ethyl alcohol. 4. In the Court below PWs.1 to 3 were examined and Exts.P1 to P4 and MO1 series were marked. The learned counsel for the appellant submits before me that the non examination of the independent witnesses is fatal to the case of the prosecution and there is no reasonable explanation for the delay in producing the material object before the Court. According to the learned counsel though the offence was detected on 15.10.97 the articles were produced only on 5.11.97. 5. The evidence to be scrutinized in this case are that of PWs.1 to 3. The first argument of the learned counsel that the non-examination of the independent witnesses is fatal to the prosecution cannot be accepted as such. Time and again CRL.A.1165 OF 2003 -:3:- the Courts have held that when a person interested in the prosecution is examined as a witness his evidence need not be brushed aside for the solitary reason. But cautioned that the evidence of such witnesses have to be meticulously scanned and scrutinized to understand and appreciate the reliability of the same. It is not uncommon in cases coming under the provisions of the Abkari Act that none of the independent witnesses support the case of the prosecution for the reasons best known to them. So the mere non-examination of an independent witness need not be considered as fatal to the prosecution. The learned Sessions Judge was also conscious of the fact and that is why towards the end of paragraph 6 of his judgment he had stated that the analysis of the evidence of PWs.1 and 2 were done with due care and caution. 6. PW1 is the Sub Inspector of police who had detected the offence. According to the prosecution the accused on seeing the police party entering into a bus got down through the back door of the bus which was moving at that time and the police apprehended him, examined him and found to be in possession of 55 packets of 100 ml. Karnataka arrack. He as PW1 has further deposed that three packets CRL.A.1165 OF 2003 -:4:- were taken out of it and it was transferred to a bottle and sealed. After that accused was produced on the next day before the Court. In the cross examination he had clearly stated that there was no leakage in any of these bottles. He had deposed about the way in which the accused got down from the bus. Though he has been severely cross-examined nothing has been brought out to discard his evidence. So the evidence of PW1 is acceptable. 7. PW2 and PW3 are also officials who had accompanied PW1 for the search and seizure and they had also spoken in clear crystal terms about what had transpired which creates a suspicion and he was arrested and the liquor seized. So a thorough re-appreciation of the evidence of PWs. 1 to 3 only inspires confidence in me to accept their evidence and that is what the Court below has precisely done. So the non examination of the independent witnesses cannot be considered as fatal to the prosecution in this case. 8. The next argument is regarding the delay in producing the samples. Three packets were taken and it was put in three bottles and sealed and Ext.P4 chemical examiner's report would show that the seals of the bottles were in tact CRL.A.1165 OF 2003 -:5:- and tallied with the sample seal provided. It is true that when the other material objects were produced there was no liquor in 40 plastic containers and the Court below has stated that they got vaporised in the process of time. If the sample and sealing is properly done and when it is examined then one cannot say that a small delay in production has caused any prejudice. What is to be satisfied by the court is that it was the illicit liquor seized from the accused that was taken as sample. In view of chemical examination with the materials available indicates the same and therefore no prejudice has been caused to the accused. So an appreciation of evidence of PWs.1 to 3 and the materials available also leads us to a conclusion that the accused was found with 55 packets of illicit arrack and therefore he is found guilty u/s 55(a) of the Abkari Act. 9. The next question is regarding the sentence. I feel that the trial Court was little harsh on the accused while imposing the punishment. The total liquor found was about 5.5. litres and for that 3 and ½ years imprisonment and 2 lakhs fine had been imposed. On a consideration of the materials I feel leniency has to be shown in this case. It will CRL.A.1165 OF 2003 -:6:- be sufficient if he is sentenced to undergo imprisonment for one year and to pay a fine of Rs.1,00,000/- in default of which he has to undergo further imprisonment for a period of three months. Therefore this Crl.A. is disposed of as follows. (1) The finding of guilt u/s 55(a) of the Abkari Act is confirmed. (2) The sentence is modified and he is sentenced to undergo one year simple imprisonment and to pay a fine of Rs.1,00,000/- and in default of which he may undergo further simple imprisonment for a period of three months. The lower Court shall execute the sentence. M.N. KRISHNAN, JUDGE. ul/-