IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN FRIDAY, THE 23RD DAY OF DECEMBER 2011/2ND POUSHA 1933 CRA.No. 298 of 2004 ( ) ================ ( SC.22/2001 of ADDL.DISTRICT COURT (ADHOC-I), ALAPPUZHA) ---------- APPELLANT/ACCUSED =============== 1 . RAJAPPAN, S/O. NANU, PUTHUPARAMBIL VEETTIL KARUVATTA VILLAGE KARTHIKAPPALLY TALUK. BY ADV.SRI.S.SHANAVAS KHAN RESPONDENT/COMPLAINANT =================== THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.S.HYMA THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK P.S.GOPINATHAN, J ---------------------------- Crl.Appeal No. 298 OF 2004 -------------------------- Dated this the 23rd day of December, 2011. J U D G M E N T The Additional Sessions Judge, Adhoc - I, Alappuzha in Sessions Case No.22/2001 on his file convicted the appellant for offence under Section 55 (a) of the Abkari Act and sentenced to rigorous imprisonment for one year and a fine of Rs.1,00,000/- with a default sentence of rigorous imprisonment for 6 months. Assailing the above conviction and sentence, this appeal is preferred. 2. Prosecution case is that on 07-12-1999, while PWs1 and 2, two Preventive Officers attached to Karthikappally Excise Range moving on patrol duty found the appellant coming across with a paper wrapped bottle in his hand. Seeing PWs 1 and 2, the appellant got puzzled. PWs1 and 2 suspected that the appellant was carrying some contraband. Therefore, they intercepted the appellant and examined the contents in the bottle. It was convinced to PWs1 and 2 that the bottle contained 750 mls of arrack. The nature of the liquid was ascertained by smell and taste. The appellant was arrested and the bottle was seized for which Ext.P1 seizure mahazar was prepared. 200 ml from the liquid contained in the bottle was taken as sample. The sample bottle as well as MO1 with remaining quantity liquor was sealed. The appellant was produced before the Excise Inspector who was examined as PW4. He registered a case as Crime No.73/1999 for which Ext.P2 crime and occurrence report was prepared. PW4 conducted part Crl.Appeal No. 298 OF 2004 2 of the investigation. PW5, who succeeded PW4, completed the investigation and submitted the charge sheet alleging the above offence. The evidence of the case consists of Pws 1 to 5, Exts.P1 to P3 and MO1. 3. I have heard Adv.Smt.S.Indu, the learned counsel for the petitioner and Smt.S.Hyma the learned Govt. Pleader. Perused the judgment impugned and the evidence on record. 4. PW3, who is an independent witness, though admitted his signature in Ext.P1 denied of having witnessed the arrest of the appellant and seizure of the contraband. Therefore, the only evidence available on record is that of PWs1 and 2. In the absence of supporting evidence of the independent witness, I had carefully gone through the evidence of PWs1 and 2. Except some minor discrepancy here and there, no material is disclosed to disbelieve them. The court below believed PWs1 and 2. The learned counsel for the appellant could not point out anything to disbelieve PWs1 and 2. Therefore, regarding the arrest and seizure, I have to concur with the trial court. Ext.P3 report of the Chemical examiner would show that on analysis, the sample was found containing 36.35% by volume of Ethyl Alcohol. There is no case for the appellant that he acquired MO1 with the liquid by any lawful means or that the liquor contained in MO1 was duly manufactured or that the liquid in MO1 is not arrack. Such being the evidence on record, I concur with the trial court. The prosecution has succeeded to establish that the appellant was carrying MO1 with 750 mls of arrack. The conviction under challenge is based on cogent evidence and requires no interference. Regarding the sentence, the learned counsel would submit that the appellant was aged 65 years as Crl.Appeal No. 298 OF 2004 3 on the date of arrest and seizure and now he is 77 years old and that he is suffering from Tuberculosis and had to maintain a widowed daughter. The availability of any dependent member is a reason not to award substantive sentence. However, I could not ignore the fact that the petitioner is now aged 77 years. Taking note of the quantity involved, the age of the appellant and that there is no report regarding any bad antecedent or any subsequent involvement in any crime, I find that a substantive sentence of rigorous imprisonment for three months with the minimum fine would meet the ends of justice. In the result, the appeal is allowed in part. While confirming the conviction, the substantive sentence is reduced to rigorous imprisonment for three months. The minimum fine imposed by the trial court with the default sentence is sustained . The trial court shall see the execution of sentence and report compliance. Undertrial imprisonment if any shall be set off. Trial court shall see execution of sentence and report compliance. P.S.GOPINATHAN, JUDGE amk