IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 CRL.A.No. 252 of 2003() ------------------------------------ SC.192/2000 of ADDL. SESSIONS COURT (ADHOC-II), THODUPUZHA CP.52/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, DEVICOLAM CR. NO.95/99 OF MUNNAR POLICE STATION. .................... APPELLANT(S): ACCUSED: ---------------------- CHELLADURI, S/O. VELUCHAMY, 6 MURILAYAM, K.K. DIVISION, ELAPPETTY ESTATE, K.D.H. VILLAGE. BY ADVS.MR.C.K.VIDYASAGAR MR.P.CHANDY JOSEPH RESPONDENT(S): COMPLAINANTS: ---------------------------- STATE OF KERALA, REPRESENTED BY THE S.I. OF POLICE, MUNNAR, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/08/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CRL.MP. NO.1359/2003 IN CRA. NO.252/2003 DISMISSED 10/08/2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.S. TO JUDGE tss M.N. KRISHNAN, J. --------------------------- CRL.A.NO.252 OF 2003 ------------------------------ Dated this the 10th day of August, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed by the Additional Sessions Judge, (Adhoc-II), Thodupuzha in S.C.No.192/2000. The accused was charge sheeted for the offence under Section 55(a) of the Abkari Act and was found guilty and convicted there under and sentenced to undergo R.I for one year and to pay a fine of Rs. One lakh and in default to undergo S.I for a further period of two months. It is against that decision, the accused has come up in appeal. 2. The points that arise for determination in the appeal are (1) whether there are sufficient materials to hold the accused guilty for the offence under Section 55(a) of the Abkari Act (2) In case of guilt, is the sentence excessive? 3. Points: Heard the learned counsel for the appellant and the Prosecutor. It is the case of the prosecution that on 2.6.1999 at 2 CRL.A.NO.252/03 about 5.30 a.m while the Sub Inspector of Police was on patrol duty, the accused was found to be carrying some liquor in a plastic bucket and on seeing the police, he had attempted to pour it down and the police apprehended him and on examination it was found to be illicit arrack by taste and smell. Immediately 180 ml sample was taken and balance was also sealed with the bucket. 4. In the court below PWs 1 to 7 were examined and Exts.P1 to P12 and Mo1 were marked. PWs 1 and 2 are the official witnesses who alone had supported the prosecution. PW1 is the police constable who had accompanied PW2, the S.I of Police. He had deposed before the court that on seeing the police party, accused attempted to pour the entire liquid to the ground but he was intercepted and it was found that the bucket contained 500ml of liquid and by taste and smell it was found to be illicit arrack. Thereafter 180 ml taken as sample from the bucket and the remaining 320 ml was kept in the bucket and sealed. The sample was produced before the court after 15 days. It was sent for chemical analysis and the chemical analyst's report revealed that it contained 3 CRL.A.NO.252/03 38.31% by volume of ethyl alcohol. 5. PW1 though cross examined at length, nothing has been brought out to discredit his evidence. PW2, the Sub Inspector of Police. has also spoken in line with PW1 and the way in which he had apprehended and arrested the accused. He had also stated how the sample was taken and sealed. He had very clearly stated the reason for the delay in producing the sample and it was absolutely in his safe custody till that time. The chemical analyst's report would reveal that the seal in the bucket was intact and found tallied with the sample seal provided. Further it could be seen that at the time of examination MO1 was properly sealed and as per the request of the defence lawyer, the seal was broken and it was found to contain the label which contained the signatures of the detecting officer and the witnesses. So, that would also establish that the liquid seized has been kept in proper custody even at the stage of trial. Therefore, delay of 16 days may not be sufficient to acquit the accused as it has not caused prejudice. Then so far as hostility of the independent witnesses is concerned, it has become the usual practice in 4 CRL.A.NO.252/03 abkari cases that all the independent witnesses use to turn. This court had considered this point in the decision reported in Sivaraman v. State of Kerala (1981 KLT SN Page 9 case 17). This Court held that independent witnesses are turning hostile for the reasons best known to them. The Court further held that evidence of official witnesses in such cases has to be meticulously scrutinized and if it is found to be intrinsically reliable and inherently probable, it can be accepted. 6. I had gone through the evidence of PWs 1 and 2. There are no material contradictions and they are trustworthy and having no axe to grind against the accused. The way in which the sample has been sealed and produced also demonstrates the same. Therefore, I cannot find fault with the court below in finding the accused guilty under Section 55(a) of the Abkari Act. 7. Now turning to the question of sentence. The court below has convicted him to undergo imprisonment for one year and to pay a fine of Rs. One lakh and in default to undergo two months imprisonment. Though it is alleged that there were about 5 litres of arrack, it is not established. What is 5 CRL.A.NO.252/03 established is that it contained only the quantity of 500 ml. Considering that quantum and the submission made by the learned counsel that the accused has to look after a large family and he is the sole bread winner of the family, I am inclined to show some leniency and direct the accused to undergo imprisonment for three months and to pay a fine of Rs. One lakh and in default to undergo imprisonment for one month. 8. In the result, the criminal appeal is disposed of as follows: 1. The finding of guilt under Section 55(a) of the Abkari Act is sustained. 2. The sentence is modified and the accused is sentenced to undergo S.I for a period of three months and to pay a fine of Rs. One lakh and in default to undergo S.I for a period of one month. The accused is entitled to acquittal as contemplated under Section 428 of the Cr.P.C. The lower court shall execute the sentence. M.N. KRISHNAN, JUDGE cl 6 CRL.A.NO.252/03 M.N. KRISHNAN, J. --------------------------- CRL.A.NO.252 OF 2003 ------------------------------ 10th day of August, 2009 JUDGMENT