IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 CRL.A.No. 1765 of 2003() ------------------------ SC.199/2001 of ADDL. SESSIONS COURT (ADHOC), THRISSUR CP.5/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I,CHALAKUDY .................... APPELLANT(S): ACCUSED. ---------------------- KUTTAN, S/O.CHAKKAN, AGED 40 YEARS, PAYYAMPILLY HOUSE, KUNDUKUZHIPADAM, KUTTICHIRA, THRISSUR DISTRICT BY ADV. SMT.K.V.BHADRA KUMARI RESPONDENT(S): COMPLAINANT. --------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.TEK CHAND THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.Appeal.No. 1765 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of June, 2009 JUDGMENT In this appeal, the accused in Sessions Case No.199/01 on the file of III Additional Sessions Court ( Fast Track Court No.I ), Thrissur challenges his conviction under Section 55 (a) of the Abkari Act and sentence to undergo rigorous imprisonment for one year and to pay a fine of Rs. l,00,000/- ,in default, to undergo rigorous imprisonment for a further period of three months. 2. The case of the prosecution before the trial court as shaped in evidence is that on May 14, 1999 at about 7.30 p.m., the appellant was found transporting 5 liters of toddy in a jerry can at the northern side of Koorkkamattom bridge in Kuttichira village and that thereby committed offence punishable under Section 55(a) of the Abkari Act. The case of the appellant/accused was of total denial and according to him, when he visited the excise office on May 15, 1999, he was arrested by the Excise officials. 3. The case was committed by the judicial First Class Court, CRA.No.1765/03 2 Chalakkudy to the Sessions Court, Thrissur which was made over to the Principal Sessions Court, Irinjalakkuda which was subsequently transferred to the trial court. When the appellant accused appeared before the lower court charge under Section 55(a) of the Abkari Act was framed to which he pleaded not guilty. 4. PWs 1 to 6 were examined, Exts.P1 to P8 were marked, MOs 1 to 3 were produced on the side of prosecution before the lower court. At the time of questioning under Section 313 Cr.P.C., the appellant pleaded innocence before the lower court. He filed a statement contending that on May 15, 1999, when he went to the Excise office, he was arrested. No defence evidence was adduced. The trial court on an appreciation of evidence accepted the evidence adduced on the side of the prosecution, found the appellant guilty of the offence punishable under Section 55 (a) of the Abkari Act, convicted him and sentenced him as aforesaid. The appellant challenges the said conviction and sentence in this appeal. 5. The following points arise for consideration 1) Whether the finding of the trial court that CRA.No.1765/03 3 the accused was found transporting 5 liters of toddy in a jerry on May 14, 1999 at 7.30 p.m. can as alleged by the prosecution can be sustained. 2) Whether the conviction of the appellant by the trial court under Section 55(a) of the Abkari Act is sustainable. 3) Whether the sentence imposed by the trial court can be sustained ? Point Nos. 1 and 2 6. Smt.K.V.Bhadrakumari, learned counsel for the appellant argued that the independent witnesses PWs 2 and 3 did not support the case of prosecution and that therefore the trial court erred in believing the evidence of PWs 1 and 4 who are the Excise officials. 7. The public Prosecutor appearing for the State would argue that the appellant was arrested on the spot, that PWs 1 and 4, the Excise officials gave a consistent version regarding the arrest and seizure of the contraband articles from the appellant and that therefore the conviction entered and sentence imposed by the lower court have to be CRA.No.1765/03 4 upheld. 8. PW1 to PW 6 were examined and Exts.P1 to P8 were marked and MO 1 to MO 3 were produced by the prosecution before the trial court. PW 1 was the Excise Ranger Officer, Chalakkudy who is the detecting officer and PW 4 was the Excise Guard who accompanied him. PW 2 and PW 3 were the independent witnesses to the incident. They did not support the prosecution. PW 5 is the Excise Inspector who investigated this case and laid the charge before the Committal Court. PW 6 is the Excise Inspector who registered the case. 9. I have gone through the evidence of PW 1 and PW 4. The defence counsel was not able to shake their evidence in cross examination. They supported the case of the prosecution on all material particulars. No suspicious inconsistencies or serious contradictions were pointed out to disbelieve their evidence. They gave a consistent version before the lower court regarding the incident and asserted that the accused was arrested from the spot itself. It was not even suggested during their cross examination that they have any CRA.No.1765/03 5 previous acquaintance or have any enmity towards them. Ext.P6 the certificate issued by the Chemical Analysist proves that the contraband articles seized from the accused is toddy. That being so, the lower court is justified in believing their evidence and coming to the conclusion that at about 7.30 p.m. on May 14, 1999 accused was found in possession of 5 litres of toddy in a jerry can ( MO 3). I find no ground to come to a different conclusion. It follows that conviction of the appellant by the trial court under Section 55(a) of Abkari Act has to be confirmed. Point No.3 10. As regards the sentence, the learned counsel for the appellant submitted that the appellant is aged 44 years and has wife and children. Further the accused was found to be in possession of only 5 liters of Toddy. The permitted quantity as per Rules is 2.5 litres. No previous conviction is proved against the appellant. He was in remand from 14/05/ 1999 to 29/05/1999 as seen from the records. 11. Taking into consideration all these facts and in the circumstances, I feel that the substantive sentence can be reduced to the CRA.No.1765/03 6 period of imprisonment already undergone by him. Statutory fine of Rs. l lakh being the prescribed minimum is maintained in the light of the principles laid down in Nhaliyan Makkil Raveendran v. State of Kerala ( 2008 (5) Supreme Court Cases 436) . With the above modification regarding sentence, the appeal is dismissed. P.Q.BARKATH ALI JUDGE sv. CRA.No.1765/03 7