IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 CRL.A.No. 332 of 2009() --------------------------------- SC.22/2008 of ADDL.SESSIONS COURT (ADHOC), KOTTAYAM .................... APPELLANT(S): ---------------------- PRINCE C.NO.3358,CENTRAL PRISON, TRIVANDRUM. BY ADV. MR. SAINU.B,STATE BRIEF RESPONDENT(S): ------------------------- STATE OF KERALA REPRESENTED BY A PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 332 OF 2009 = = = = = = = = = = = = = = = Dated this the 22nd day of July, 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, Kottayam in S.C.22/08. The accused was charge sheeted for the offence u/Ss. 55(a), 55(g) and Ss.8(1) and (2) of the Abkari Act. He was convicted u/s 8(1) and (2) and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for a period of three months. It is against that decision the present appeal is filed by the accused. 2. The points that arise for determination in the appeal are; (1)Whether the materials are sufficient to hold that the accused has committed the offence u/s 8(1) and 55(g) of the Abkari Act? (2) In case of guilt, is the sentence imposed excessive? Crl.A. 332 OF 2009 -2- Points: 3. Since the appeal was sent from the jail and as nobody was there to argue the case for the accused Smt. Sainu. B was appointed as the State Brief and she had argued the matter at length. Heard the counsel for the prosecution also. It is the case of the prosecution that on 28.10.03 at about 6.10 a.m. at the teak plantation situated near Pachima Devi Temple the accused was found distilling illicit arrack and was found in possession of 20 litres of wash and 25 litres of arrack. PW2 is the person who had detected and seized the alleged arrack. He had deposed before Court while he was on patrol duty along with others at about 5.45 a.m. when they reached near the Temple three persons who had come to offer prayer in the Temple informed him about the distilling of illicit arrack in the teak plantation. Accordingly they proceeded to that place and found the oven was burning and three aluminum vessels, tubes etc. used for the purpose of distilling illicit arrack. He was able to find 20 liters of wash, two bottles, one container containing 20 liters of illicit arrack and Crl.A. 332 OF 2009 -3- the other five liters of illicit arrack. He was also able to see the utensils used for the purpose of distilling illicit arrack. 500 ml. wash was taken as the sample in a 750 ml bottle and 375 ml from the 5 liters Can and 300 ml from the other 22 liter Can. It was sealed and they had affixed their signature. On test and smell it was found to be illicit arrack. The accused was arrested, his relatives informed and was proceeded further. He has admitted in the cross examination that he did not have any information prior to the intimation given by the three persons. He has deposed that he is familiar with the place. He had also stated about the torch but stated that it was not necessary at that point of time. He has also stated that accused was alone found in that place. He had denied the suggestion that while the accused was in anticipatory bail he had caught hold of the accused and booked him in another case on account of the enmity that the accused had complained about him in another matter. So the evidence of PW2 speaks about the incident in detail. Crl.A. 332 OF 2009 -4- 4. PW1 is the Village Officer who had prepared Ext.P1 plan. PW3 and 4 are the independent witnesses who had turned hostile. PW5 is the Preventive officer who had received the materials and prepared the occurrence report and had produced the accused before court. PW6 is the person who had prepared the forwarding note, Ext.P6 and sent it to the court. PW7 is the Circle Inspector of Police who had completed the investigation and laid the charge. PW9 is the officer who had obtained the sample and produced it before the chemical laboratory at Thiruvananthapuram. The learned counsel for the accused would contend that the evidence of PW2 cannot be believed for the reason that there was enmity between him and the accused on account of the complaint which he had preferred against PW2. Except for the mere suggestions in the cross-examination nothing is brought out to show that such a complaint has been filed. A reading of the evidence of PW2 would reveal that in the morning when he received information from the premises of the Temple he had rushed to the spot and had caught the accused red handed Crl.A. 332 OF 2009 -5- with all the utensils, 20 liters of wash and 25 liters of arrack. All these things were handed over and produced before the court also immediately and one cannot manipulate a case of this nature as suggested by the learned counsel for the appellant. The very suggestions would show that the accused is involved in this field that is why he has stated that he was in anticipatory bail in some other case and the appellant had booked him on account of that. The evidence of PW2 appears to be convincing. Whether the uncorroborated evidence of the official witnesses can be accepted had also come up for consideration before this court in the decision reported in Sivaraman v. State of Kerala (1981 KLT S.N. Case No.17 page 9). It was held by this court that while appreciating or accepting the evidence of official witnesses what is to be done is that it must be put to strict and meticulous scrutiny to find out the intrinsic reliability of the evidence so tendered. A close reading of the evidence of PW2 would reveal that it is not prejudiced and it is intrinsically reliable. The further factum of sending the sample etc. are in time and examination of the Crl.A. 332 OF 2009 -6- witnesses to prove the same are all leak proof evidence tendered by the prosecution against the accused. Therefore I do not find any ground to interfere with the conviction rendered by the court u/s 55(g) and S.8(1)(2) of the Act. It has also to be stated the court has not given any separate sentence u/s 55(g) of the Act. 5. Now turning to the question of sentence. The facts submitted by the learned counsel for the appellant would show that it requires consideration. It is submitted he is a married man with two girl children aged 12 and 14 years besides his 75 year old mother and all of them are living on the amount earned by him. It is true that the quantum of liquid seized from him is high and that he is involved in a business which is totally prohibited by law. So taking into consideration the materials I hold that he may be sentenced to undergo rigorous imprisonment for a period of 1 and ½ years and the default sentence be reduced to a period of three months. Crl.A. 332 OF 2009 -7- In the result the Crl.Appeal is disposed as follows: 1) Conviction u/s 8(1) and (2) and S.55(g) of the Abkari Act is sustained. 2) The sentence is modified and the accused is sentenced to undergo rigorous imprisonment for a period of 18 months and to pay a fine of Rs.1,00,000/- and in default of which he is directed to undergo a further imprisonment for a period of three months. (3) He is also entitled to set off as contemplated under S.428 Cr.P.C. (4) No separate sentence is awarded u/s 55(g) of the Abkari Act. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 332 OF 2009 -8- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 332 OF 2009 = = = = = = = = = = = J U D G M E N T 22nd July, 2009