IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 3RD JANUARY 2011 / 13TH POUSHA 1932 CRL.A.No. 1118 of 2010(D) -------------------------------------- SC.2355/2006 of ADDL. SESSIONS COURT (ADHOC), TRIVANDRUM ........................................ APPELLANT(S): ------------------------- RAJAN,C.NO.1528, CENTRAL PRISON, THIRUVANANTHAPURAM. BY ADV. ADV.THOMSTINE K.AUGUSTINE[STATE BRIEF] RESPONDENT(S): -------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. PUBLIC PROSECUTOR MR.M.R. VENUGOPAL THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/01/2011, THE COURT ON DELIVERED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.Appeal.No.1118 OF 2010 ----------------------------------- Dated 3rd January, 2011 J U D G M E N T This appeal arise from the conviction and sentence passed against appellant under section 8(1) read with section 8(2) of Abkari Act. Appellant was sentenced under the above sections to undergo simple imprisonment for two years and pay fine of Rs.1,00,000/- and in default of payment of fine, accused shall undergo simple imprisonment for six months more. Set off was also granted. 2. According to prosecution, on 28.1.2005 PW5, Assistant Excise Inspector received information that arrack sale was going on near the bank of a river near Sreechakra Siva Temple and he proceeded to the said place along with PW3, the Preventive Officer etc. On reaching there, accused was found carrying a can containing arrack. He was found to be perplexed and hence, he was apprehended. Seizure was effected. Sample was taken. Appellant was arrested from the spot in the presence of independent witnesses, who include PW2. MO1 to MO3 were seized from the spot. Case was registered as Ext.P6. Mahazar is Crl.A. No.1118/10 2 Ext.P4. After investigation, PW4, Excise Inspector filed final report. 3. To prove the prosecution case, PW1 to PW5 were examined. Exts. P1 to P6 and MO1 to MO3 were marked. The trial court on analysis of the evidence found that accused was in possession of six litres of arrack and thereby convicted him for offence under section 8(2) of Abkari Act. 4. Appellant was undefended and hence Adv.Mr. Thomstine. K. Augustine was appointed as State Brief. Heard both sides. Perused records. According to appellant, the crime was detected by Assistant Excise Inspector, who is incompetent. It is also contended that this is a false case. There was no seal and label on the material objects. 5. On going through the evidence of PW4 Assistant Excise Inspector, PW3 Preventive Officer, I found that they have corroborated each other in all material particulars relating to detection of the offence, search and seizure. They gave evidence that when they went to the place of occurrence on getting information by PW5 and accused was found carrying a can and bottle and on examination of them, those were found to contain arrack. The accused had no explanation for possession of arrack. Therefore, he was arrested from the spot and articles were seized Crl.A. No.1118/10 3 under the mahazar in the presence of independent witnesses, including PW2. 6. PW3 to 5 were cross examined but nothing is brought out from evidence to show that they had any motive to speak against appellant. Their evidence stands undiscredited in cross examination. Though PW2 turned hostile to prosecution, he gave evidence that he signed the mahazar and other contemporaneous records. There is no explanation from him why he should sign those documents. He stated in cross examination that documents were in writing when he signed the same. In such circumstances, his evidence, to certain extent, corroborates the evidence of official witnesses. 7. Even though a contention is taken up that Assistant Excise Inspector is not competent to detect the same and hence it is not valid, it can only be rejected, since Assistant Excise Inspector is an authorised officer who can detect the crime. The final report is filed by Excise Inspector, who is also competent to file the final report. It is contended that articles were not labelled, but there is ample evidence to show that they were labelled and signed by witnesses and accused. 8. PW2, the independent witness gave evidence that on the labels of MO1 and MO2 his signature was seen. Trial court has Crl.A. No.1118/10 4 noted that accused is in custody for some other Abkari cases also. It is also informed by Superintendent of Central Prison that accused is in detention in other cases upto 2014. The prosecution has thus established that appellant was in possession of one litre of arrack in a bottle having 11/2 litres of capacity and five litres of arrack in a can having five litres of capacity. Altogether he was having possession of six litres of arrack. In such circumstances there is absolutely no ground to interfere with the conviction. The sentence passed also appears to be consistent with the gravity of offence. It is also to be noted that as per the report of superintendent of Jail, appellant has already suffered more imprisonment than the sentence imposed in this case and that he is suffering sentence in other cases which will be over only by 2014. In such circumstances, conviction and sentence are confirmed. This appeal is dismissed. K. HEMA, JUDGE. Sou.