IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 22ND NOVEMBER 2010 / 1ST AGRAHAYANA 1932 CRL.A.No. 481 of 2010(O) ------------------------ SC.161/2007 of ADDL. SESSIONS COURT (ADHOC), PATHANAMTHITTA CP.167/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT, THIRUVALLA .................... APPELLANT -------------- BHASKARAN,C.NO.4350, CENTRAL PRISON, THIRUVANANTHAPURAM. BY ADV. ADV.BINDU.M.A.(STATE BRIEF) RESPONDENT --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.Appeal No. 481 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of November, 2010 JUDGMENT This is a Jail appeal filed by the accused in Sessions Case No.161/2007 on the file of Additional District and Sessions Judge ( Adhoc) Fast Track Court I, Pathanamthitta challenging his conviction under Section 8(1) and (2) of Akbari Act and sentence to undergo rigorous imprisonment for one year and to pay a fine of Rs.1 lakh, in default to undergo rigorous imprisonment for six months. 2. The case of the prosecution as unfolded in evidence before the lower court in brief is this : Pws 1 and 2 are the Preventive Officers attached to Anti Narcotic Special Squad, Pathanamthitta. On September 10, 2004 when they were on petrol duty at 5.30 p.m. at Komattukulam junction near Ulloorchira, they found the accused coming with a plastic bottle. On seeing Pws 1 and 2, he attempted to escape. They stopped him and on examining the bottle, it was found to contain 1 ½ litres of arrack. Accused was arrested on the spot after preparing Ext.P1 arrest memo. Crl.Appeal No.481/2010 2 They took sample from the bottle and took him to the Excise Range Office and registered case against him. PW6, the then Excise Inspector conducted investigation in this case, questioned the witnesses and recorded their evidence and laid the charge before Committal Court, the Judicial First Class Magistrate Court, Thiruvalla. As a prima faice case was made out against the accused, the learned Magistrate committed the case to the Sessions Court, Pathanamthitta from where it was made over to the lower court for trial and disposal. 3. After hearing both sides, the learned Sessions Judge framed charge under Section 8(1) read with Section 8(2) of the Abkari Act and read over and explained to the accused to which which he pleaded not guilty. Pws 1 to 6 were examined and Exts.P1 to P9 and MO 1 were marked on the side of the prosecution. When questioned under Section 313 Cr.P.C, the accused denied the entire incident. No defence evidence was adduced. 4. On an appreciation of evidence, the learned Sessions Judge found the accused guilty of the offence charged against him, convicted him thereunder and sentenced him as aforesaid. The accused has now Crl.Appeal No.481/2010 3 come up in appeal challenging his conviction and sentence. 5. The accused was represented by a counsel appointed as State Brief. Heard the counsel for the accused and the Public Prosecutor. 6. The following points arise for consideration : 1) Whether the conviction of the accused under Section 8(1) and (2) of the Abkari Act can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh? Point No.1 7. Pws 1 and 2 are the Preventive Officers attached to Anti- Narcotic Special Squad, Pathanamthitta. They gave a consistent version regarding the arrest of the accused and seizure of bottle MO 1 containing arrack from him. Nothing was brought out during their cross examination to discredit their evidence. They have no prior acquaintance with the accused or any enmity to charge a false case against him. The main criticism levelled against their evidence is that they being Excise Officials and as their evidence is not corroborated by independent witnesses, their evidence should not be believed. I am not Crl.Appeal No.481/2010 4 inclined to agree. There is no rule of law that the evidence of official witnesses cannot be relied on. The Apex Court has held in Girija Prasad v. State of M.P.( 2007(4) KLT 99(SC) that evidence of official witnesses can be relied on and the accused can be convicted on the basis of their evidence, if their evidence is found to be reliable and trust worthy. I have gone through the evidence of Pws 1 and 2. I find no reason to doubt their credibility and I find their evidence reliable and trust worthy. Therefore, in my view, the lower court is justified in believing their evidence and coming to the conclusion that the prosecution has succeeded in proving the arrest and seizure of illicit arrack from the accused. Ext.P9 the report of Chemical Analysist shows that the liquid in the bottle seized from the accused contain illicit arrack. Therefore, I am inclined to confirm the conviction of the accused under Section 8(1) and (2) of the Abkari Act. 8. As regards the sentence, the lower court imposed a sentence of rigorous imprisonment of one year and a fine of Rs. 1 lakh with default sentence. The quantity of arrack seized was only 1 ½ litres. Further, the accused is in Jail from January 19, 2010 onwards. Crl.Appeal No.481/2010 5 Therefore, in the circumstances of the case, a lenient view is taken and I hold that the substantive sentence can be reduced to the period of imprisonment already undergone by him. The sentence of fine being the statutory minimum is maintained. In the result, the appeal is dismissed with the above modification regarding sentence. P.Q.BARKATH ALI JUDGE sv. Crl.Appeal No.481/2010 6