IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 CRL.A.No. 1066 of 2003(B) ------------------------------------- SC.NO.496/1999 OF ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD. .................... APPELLANT/ ACCUSED: ----------------------------------- K.MALINGAN, S/O. MAYAN, AJANUR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADVS. MR.T.K.VIPINDAS. MR. K.M. HASHIR. RESPONDENT/ COMPLAINANT: --------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE EXCISE INSPECTOR, HOSDURG RANGE. BY PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1066 OF 2003 = = = = = = = = = = = = = = = Dated this the 20th day of July, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed in S.C.496/99 of the Addl. Sessions Judge (Adhoc-I), Kasaragod. The accused was found guilty and convicted for the offence u/s 55(a) and 55(g) of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/- each under both the sections and there was a direction that the sentences shall run concurrently. 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 that the accused has committed the offence u/s 55(a) and (g) of the Abkari Act? (2) In case of guilt whether the punishment is excessive? Crl. Appeal NO. 1066 OF 2003 -:2:- Points 1 and 2: 3. Heard the learned counsel for the appellant as well as the public prosecutor. It is the case of the prosecution that on 16.10.98 when the excise officials went to the house of the accused to enquire about the complaint given by him they felt the toxic smell of arrack and therefore after preparing search memo and sending it to the Court conducted a search in the house of the accused in the presence of the witnesses and seized 10 liters of wash and 10 liters of illicit arrack from inside the house and thereafter by smell and taste found it to be wash and arrack respectively. A sample of 500 ml was taken from the wash and 300 ml from the arrack. The accused was produced before court. In support of the case of the prosecution PWs.1 to 5 were examined. PW1 is the Preventive Officer of the Special Squad. He had deposed before court that they had gone to conduct an enquiry and they were able to find on search that there were 10 litres of wash and 10 litres of arrack in the house of the accused. According to him they took 500 ml wash and 300 ml arrack. It is suggested to him in the cross examination that since the accused has filed a complaint against the excise officials they Crl. Appeal NO. 1066 OF 2003 -:3:- had turned against him and had booked a false case with the materials objects of some other case. It is stoutly denied by PW1. PW2 is the Special Grade Secretary of the Grama Panchayat and he had produced Ext.P3 which would reveal that the house which was searched belonged to the accused. PW3 has turned hostile to the prosecution and he is an independent witness to the seizure mahazar. PW4 is the Preventive Officer and he had deposed that an Abkari case was registered against the accused by him and he had received the material objects and produced before Court. PW5 is the person who had conducted the investigation and laid the charge before Court. It can be seen from the materials available here that the search was conducted in the presence of the witnesses though the independent witnesses had turned hostile to the prosecution. 4. The property had been produced within a period of five days from the date of seizure and it had been properly sampled and sealed. The chemical analysis report would reveal that the seal on the bottles were in tact and had tallied with the sample seal provided. It contained percentage of ethyl alcohol by volume of 34.96% and 6.99% respectively. Crl. Appeal NO. 1066 OF 2003 -:4:- So the materials would show that the accused's house when searched was having 10 litres of wash and 10 litres of arrack. Wash and arrack had been seized from his house in his presence and the ownership of the house also stands established by Ext.P3. Therefore I find the Court below had arrived at a decision on the materials available and therefore the conviction u/s 55(a) and (g) of the Abkari Act are sustainable. 5. Now turning to the question of sentence. There has been some misunderstanding between the excise officials and the accused. A complaint has been filed against the officials by the accused. It is in the process of that investigation the case is detected. I am taking it also as a ground to reduce the sentence. I feel interest of justice can be met by directing the accused to undergo imprisonment for a period of six months each u/s 55(a) and (g) which shall run concurrently. The default sentence of fine would be two months each or in other words total punishment would come to 10 months. A perusal of the judgment would reveal that he had been in jail for 10 months and 11 days which means he need not undergo any further imprisonment in the jail. Crl. Appeal NO. 1066 OF 2003 -:5:- In the result the Crl.Appeal is disposed as follows. (1) Finding of guilt u/s 55(a) and (g) of the Abkari Act is confirmed. (2) The accused is convicted and sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.1,00,000/- u/s 55(a) of the Abkari Act and sentenced to undergo six months simple imprisonment and a fine of Rs.1,00,000/- u/s 55(g) of the Act. The sentence of imprisonment shall run concurrently. The default sentence is reduced to two months each. Since the accused had already undergone imprisonment for more than a period of 10 months no further imprisonment remains to be served in this case including the default sentence. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 1066 OF 2003 -:6:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 1066 OF 2003 = = = = = = = = = = = J U D G M E N T 20th August, 2009