IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 CRL.A.No. 1155 of 2003() ---------------------------------- SC.377/2000 of ADDL. SESSIONS COURT (ADHOC-I), KASARAGOD CP.215/1999 of JUDL. MAGISTRATE OF FIRST CLASS-I, KASARAGOD ...................................................................... APPELLANT(S): ACCUSED ------------------------------------- KORAGAPPA POOJARI, S/O. DHERA POOJARI, AGED 49 YEARS, CHINGIRPADE HOUSE, CHERKA, MIYAPADAVU, KASARAGOD DISTRICT. BY ADVS. SMT.T.D.RAJALAKSHMI SRI.E.R.VENKATESWARAN RESPONDENT(S): STATE AND COMPLAINANT ---------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2. SUB INSPECTOR OF POLICE, KUMBALA POLICE STATION, KUMBALA. BY ADV.SRI.C.M.NAZAR, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.1155 OF 2003 -------------------------- Dated this the 8th day of July, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the conviction and sentence passed by Additional Sessions Judge, Ad hoc-I, Kasaragod, in S.C.377/00. The accused was charge sheeted u/s.55(a) of Abkari Act and was found guilty thereunder and sentenced to undergo rigorous imprisonment for a period of 3 years and to pay a fine of Rs.1 lakh and in default to undergo rigorous imprisonment for 6 months. It is against that decision the accused has come up in appeal. The points that arise for determination are, 1. Whether the materials are sufficient to hold that the accused is guilty of the offence alleged under S.55(a) of Abkari Act ? 2. In case of guilt, whether the sentenced imposed is excessive ? 2. Points 1 and 2 :- Heard the learned counsel for the 2 CRL.A.No.1155 OF 2003 appellant as well as the learned prosecutor. The prosecution case is that on 10.4.99 at 5 P.M., the accused was found transporting 24 bottles of whisky in 375 ml. capacity and another 12 bottles of 750 ml. capacity, against the provisions of Kerala Abkari Act, in a scooter bearing Regn.No.CNX 4017, through the panchayat road in Mangalpady Village. The accused was apprehended and the evidence available is that of PW2. PW2 is the Sub Inspector of police and he had deposed before the court that, while they were on law and order duty, they found the scooter driven by the accused coming and when it was stopped and searched, they were able to find the bottles mentioned above and therefore he was arrested, samples were taken in two 375 ml. bottles and it was sealed and the case was registered. The seizure mahazar was prepared, which is marked as Ext.P2. The forwarding notice is Ext.P4 and the chemical examiner's report is marked as Ext.P5, which reveals that the liquor contained ethyl alcohol by percentage. He had been cross examined. He has stated in 3 CRL.A.No.1155 OF 2003 the cross examination that the accused did not attempt to escape and he is not in a position to say where exactly the bottles were placed on the right side or on the left. It is also stated that the seizure mahazar was, in his hand writing and according to him the scooter was brought to the station by the police constable who was with him. A suggestion is put to him that, when the vehicle is running, the engine will get heated and plastic items may melt. PW1, the independent witness examined, had turned hostile to the prosecution. The learned counsel for the appellant strongly contends before me two propositions. One is that the persons who had detected the case has conducted the investigation and secondly, the evidence of the official witnesses alone cannot form the basis for conviction in a case of this nature. The learned counsel's arguments are answered by two decisions of this court of which I may presently refer to. So far as the evidence of the official witnesses are concerned, the court considered the question in Sivaraman V. State of Kerala [1981 KLT Short Notes, Page 4 CRL.A.No.1155 OF 2003 no.9, case no.17]. This court held that, “Instances are not rare where independent witnesses, for reasons of their own, go back on the contents of the mahazar which they had attested. It can not be assumed that in such a case the requirements of law contemplated u/s.100 of the Code have not been followed. The court has to scrutinise the evidence of the Excise Officers to satisfy itself whether the procedural safeguards have been observed, if so satisfied, the evidence of official witnesses regarding occurrence and seizure can be accepted.” So the only caution is that, the evidence of the official witnesses should be put to strict scrutiny. The next argument is that the person who had detected had conducted the investigation. The learned counsel had brought before me the decision of a single Judge, in Noushad V. State of Kerala reported in 2001 KLT 785. In that case, the learned Judge of this court took the view that, when the complainant and the Investigating Officer are one and 5 CRL.A.No.1155 OF 2003 the same it can not be said to be fair and it invalidates the proceedings. But this decision came up for consideration in another case reported in 2001(2) KLT 407, Khader V. State of Kerala and a specific reference was made to the division bench regarding the correctness of the decision, as reported in 2001 KLT 785. After exhaustively dealing, the division bench held that the legal position stated in 2001 KLT 785 is to be over ruled. The court also considered the decision of the Supreme Court referred to in 2001 KLT 785. So far as Abkari offences are concerned the main thrust is on the detection and seizure. The other things are only procedural formalities and so investigation is of a very minor nature for the reason only that, it has to confirm what has been done. Therefore just because the detecting officer has investigated the crime, it will not ipso facto make it illegal, unless one is able to make the situation, a prejudice has been caused to the accused. Now turning to the facts of the present case, the accused was apprehended while he was driving the scooter and he was intercepted, examined 6 CRL.A.No.1155 OF 2003 and the bottles were found and samples were taken and it is proved that it is all the foreign liquor which can be sold in the state of Karnataka. The evidence of PW2 is not conflicting in nature and it is consistent and acceptable as truthful. So relying on the evidence of PW2, there is no harm in convicting the accused. Therefore, I sustain the conviction passed u/s.55 (a) of Abkari Act. 3. Now turning to the question of sentence. The learned counsel for the appellant very strongly pleads for leniency. I had bestowed my attention to the facts of the case as well as the submissions made by the learned counsel. I am inclined to show leniency and reduce the sentence. I feel it as a fit case and hence the sentence is reduced to 1 year, with a direction to pay a fine of Rs.1 lakh and in default to undergo imprisonment for 3 months instead of 6 months. In the result, the criminal appeal is disposed of as follows :- 1. The conviction and sentence passed u/s.55(a) of Abkari Act is confirmed. 7 CRL.A.No.1155 OF 2003 2. The sentence is modified and the accused is directed to undergo simple imprisonment for a period of 1 year and to pay a fine of Rs.1 lakh, in default of which to undergo simple imprisonment of 3 months. He is entitled to set off as contemplated u/s.428 of Cr.P.C. and the lower court shall execute the sentence. M.N.KRISHNAN, JUDGE ami.