IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 1ST AUGUST 2011 / 10TH SRAVANA 1933 CRL.A.No. 1112 of 2010(D) ------------------------- DV.600/2007 of ADDL.DISTRICT & SESSIONS JUDGE, VADAKARA .................... APPELLANT(S): -------------- KUNHIRAMAN,S/O.KANARAN, C.NO.8148, CENTRAL PRISON,KANNUR BY ADV. ADV.SREEVALSAN V[STATE BRIEF] RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. PUBLIC PROSECUTOR SRI.M.R.VENUGOPAL THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/08/2010 , THE COURT ON 01/08/2011 DELIVERED THE FOLLOWING: V.K.MOHANAN,J ------------------------------ Crl.A. No.1112 of 2010 -------------------------------------------- Dated this the 1st day of August, 2011 JUDGMENT The appellant is the sole accused in Crime No.42/2005 of the Vadakara Excise Range, registered for the offence u/s.8(1) of Abkari Act. 2. The prosecution case is that, at 11.00 a.m on 21.6.2005, the accused was found in possession of 5 liters of illicit arrack in a black plastic can in front of the house of one Ponnarathummal Vijayan in Thiruvallur Chaniyam kadavu road and thereby the accused committed the offence punishable u/s.8(1) of the Abkari Act. 3. During the trial, a formal charge was framed u/s.8(1) of the Abkari Act which read over and explained to the accused and he denied the same and pleaded not guilty . Consequently, the prosecution adduced its evidence by examining PWs.1 to 6 and producing Exts.P1 to P9 documents. No evidence is tendered by the accused. On the conclusion of the trial, the trial court has found that the prosecution has succeeded in establishing its case against the accused beyond reasonable doubt and accordingly, he is convicted u/s.8(1) of the Abkari Act. On such conviction, the Crl.A. No.1112 of 2010 2 trial court sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.One lakh and in default he is directed to undergo rigorous imprisonment for 6 months. Set off was allowed u/s.428 of Cr.P.C. It is the above conviction and sentence challenged in this appeal. 4. As the appeal was preferred from jail, as ordered by this Court, Advocate Sri.Sreevalsan is appointed as counsel to prosecute the appeal as State brief. Thus, I have heard Sri.Adv.Sri.Sreevalsan and the learned Public Prosecutor. As I indicated earlier, the crux of the prosecution allegation is that the accused is found in possession of 5 liters of illicit arrack. The offence detected by PW1, Excise Inspector, Vadakara Excise Range. The further investigation was undertaken by PW5 who is another Excise Inspector of the Excise Range and he laid the charge on completing the investigation. The detecting officer, who is examined as PW1, deposed that at 11.00 a.m. on 21.6.2005, when himself and party conducting patrol duty they saw the accused with a black plastic can in front of the house of one Ponnarathummal Vijayan. According to PW1, on seeing them the accused perplexed and when the can in his hand was inspected, found some liquid and PW1 ascertained the liquid contained in the can, as illicit arrack by smelling and tasting of Crl.A. No.1112 of 2010 3 the same. Thus, PW1 prepared Ext.P1 arrest memo and arrested the accused at 11.00 a.m. PW1 further deposed that he had drawn samples as per Ext.P2 seizure mahazar. He had also deposed that on the sample bottles he affixed the label containing the signature of the witness, accused and himself. PW1 has further deposed that thereafter he returned Excise Range Office with the accused and the contraband article and thereafter, registered Ext.P3 crime and occurrence report. According to him, the sample and property were produced before the court on the next day as per Ext.P4 property list. He had also produced Ext.P5 forwarding note. Ext.P6 is the inventory prepared by A.E.C u/s.53(a) of the Abkari Act. Ext.P7 is the certificate issued by the committal Magistrate showing the correctness of the inventory. PW2 is a preventive officer, who was accompanying PW1 and he had deposed in tune with the deposition of PW1 in all material particulars. PW2 has stated that Ext.P2 seizure mahazar was prepared in his handwriting. PW3 is the Village Officer of Thiruvallur who prepared Ext.P8 sketch plan. PW4 is the property clerk of the committal court who received the sample and property on 22.6.2005. PW5 is the Excise Inspector, Vadakara Excise Range who undertook the investigation and laid the charge sheet after completing the investigation. PW6 is an Crl.A. No.1112 of 2010 4 attester to Ext.P2 seizure mahazar but he turned hostile. Though, PW6 turned hostile he had admitted his signature in Ext.P2 and he had also stated that he had seen the accused and excise jeep in front of the house of Ponnarathummal Vijayan. Ext.P9 chemical analysis report is marked through PW5. The learned Sessions judge, in support of his finding accepted and considering the above evidence and materials and it is the above finding and conviction are under challenge. 5. The learned counsel for the appellant vehemently submitted that it prove the detection there is no independent evidence and the alleged seizure of the contraband article from the possession of the appellant also not supported by no independent evidence. The evidence of official witnesses alone are not sufficient to convict the accused/appellant. It is pointed out that as per the evidence of the Village Officer there are several houses adjacent to the place of occurrence, but non of the local inhabitant made as witness to the seizure and arrest. It is the further submission of the learned counsel that the evidence of Pws.1 and 2 cannot be believed as the same are not free from doubt, especially when they are highly interested witnesses. Thus, according to the learned counsel, the prosecution has miserably failed to prove the allegation against the accused Crl.A. No.1112 of 2010 5 beyond doubt and therefore, the findings of the trial court is liable to be set aside and the appellant/accused is entitled for an acquittal. 6. The learned Public Prosecutor, submitted that the evidence of the official witnesses namely PW1 and 2 clearly establish the prosecution case and the seizure of the contraband article from the physical possession of the accused/appellant has been proved without any doubt. It is also the submission of the learned Public Prosecutor the contraband article and accused were produced before the court without any delay and the investigation was also conducted effectively. Thus, according to the learned Public Prosecutor, no interference is warranted, since the findings and conviction of the trial court is fully supported by sufficient evidence. 7. I have carefully considered by the arguments of the learned counsel for the appellant as well as the learned Public Prosecutor. I have carefully perused the evidence and materials on record. 8. As far as an offence u/s.8(1)of the Abkari Act is concerned, the same can be said to be established generally when the prosecution proves the seizure of the contraband article from the possession of the accused. In the present case, Crl.A. No.1112 of 2010 6 PW1, the detecting officer and PW2 an officer who was accompanying PW1 at the time of the detection of offence, it is clearly deposed before the court, the entire incident which led to the seizure of the contraband article and arrest of the accused/appellant. I have already referred to the deposition of PW1 and 2. Though, PW1 and 2 were subjected lengthy cross examination, nothing was brought on record to discredit their version. Ext.P2 seizure mahazar was prepared at the instance of PW1. PW1 says that as detected by him, PW2 in his handwriting prepared Ext.P2. PW2 also deposed that Ext.P2 was prepared in his own handwriting as dictated by PW1. The entire proceedings adopted by PW1 is recorded in Ext.P2 seizure mahazar and such contemporary document reached in the court without any delay. As per Ext.P1 arrest memo, the accused was arrested then and there. Subsequently, PW1 himself registered Ext.P3 FIR and produced the properties and the contraband article before the court on the next day and also filed Ext.P5 forwarding note for sending the contraband article for chemical analysis and he had also prepared Ext.P6 inventory of the property, which was certified by the learned Magistrate of the committal court as per Ext.P7 certificate. In Ext.P9 chemical analysis report, it is reported that methyl alcohol was detected in the sample and the Crl.A. No.1112 of 2010 7 sample contain 23.06% by volume of methyl alcohol. As per the property list and the forwarding note and also from the chemical analysis report, it is crystal clear that the samples were properly sealed and labeled and all the documents and material objects were reached in the court without any delay. The above facts, coupled with the evidence of PWs.1 and 2 would show that the prosecution has succeeded in establishing its allegation against the accused, beyond any doubt. 9. It is true, that the independent witness namely, PW6 turned hostile to the prosecution. But, it can be seen that the prosecution has tried to adduce independent evidence in support of their allegation against the accused. Though PW6 turned hostile, he had admitted the signature in Ext.P2 seizure mahazar. He had also stated that he had seen the accused and the excise jeep in front of the house of one Ponnarathummal Vijayan. The above evidence of PW6 further corroborate the evidence of PWs.1 and 2. It is also brought out on record that PW6 has got acquaintance with the accused for 10 years and therefore, he turned hostile towards the prosecution so as to help the accused. As I indicated earlier, as there is no contradiction or infirmities in the evidence of PW1 and 2, according to me, the prosecution case cannot be disbelieved as no independent witness spoken in Crl.A. No.1112 of 2010 8 favour of the prosecution. 10. In the light of the above facts, circumstances and the discussions, the learned Sessions judge is perfectly justified in his findings. Thus, according to me, the prosecution has succeeded in proving the allegation against the accused beyond reasonable doubt and accordingly, the conviction recorded by the trial court against the accused is confirmed. 11. Though, the appellant/accused was found in possession of 5 liters of illicit arrack, the trial court has imposed the sentence of rigorous imprisonment only for one year and to pay a fine of rupees One lakh, and therefore, I find no reason to interfere with the sentence also. In the result, there is no merit in the above Crl. Appeal and accordingly, the same is dismissed. V.K.MOHANAN, JUDGE pm