IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 5TH JANUARY 2009 / 15TH POUSHA 1930 CRL.A.No. 1036 of 2008 -------------------------------- SC.1926/2004 of ADDL. DISTRICT & SESSIONS COURT ( FAST TRACK COURT I), TRIVANDRUM CP.20/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, ATTINGAL .................... APPELLANT : ACCUSED ---------------------------------- BALRAJ, C.NO.2472, CENTRAL PRISON, TRIVANDRUM. BY ADV. NEEMA T.V., STATE BRIEF RESPONDENT: COMPLAINANT ------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. K. MOHANAN, J. ~~~~~~~~~~~~~~~~~~~~~~~~ Crl. Appeal No. 1036 OF 2008 ~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 5th day of January, 2009 JUDGEMENT This appeal arose out of the judgment dated 2.1.2008 in S.C.No. 1926/2004 of the Court of the Additional District and Sessions Judge (Fast Track Court I), Thiruvananthapuram, at the instance of the accused, challenging his conviction and sentence under Section 8(1) and (2) of Abkari Act, in the above case. 2. The prosecution allegation is that on 21.2.2002, when they searched the house of the accused pursuant to an information, the accused was found engaged in distilling illicit liquor and accordingly the utensils, 15litres of wash and 5 litres of illicit arrack were seized. Thus Crime No. 11/2002 was registered in the Vamanapuram Excise Range for the offences under Section 8 (1) and (2) of the Kerala Abkari Act. After completing the investigation in the above crime, a final charge was laid before the Judicial First Class Magistrate's Court II, Attingal. Whereupon C.P. No. 20 of 2004 was instituted and by his order dated 29.6.2004 the learned Magistrate committed the case to the Crl. Appeal No. 1036 of 2008 : 2 : Sessions Court. From there it was made over to the trial court for disposal. The trial court after hearing both the prosecution as well as defence, a formal charge under Sections 8 (1) and (2) was framed , read over and explained to accused and he pleaded not guilty, which resulted in the further trial, during which PW1 to PW8 were examined and Ext.P1 to Ext.P9 were marked from the side of the prosecution. Ext. X1 and Ext.X2 were marked as court exhibits. M.O.1 to M.O.14 were identified and marked as material objects. The accused took a stand of total denial and it is his specific case that he was not residing in the place from where the alleged contraband was seized and he was not arrested from the spot. The accused himself was examined as DW1 and marked Ext.D1 and D2. Besides that, Ext.D3 and D4 were also produced and marked as defence exhibits. Finally, court below found that accused is guilty of the charge levelled against him and accordingly he is sentenced to undergo Rigorous Imprisonment for three years and to pay a fine of Rs.1,00,000/- (Rupees One lakh only). He is further ordered to under go Simple Imprisonment as additional sentence for a period of six months, in case, he commit default Crl. Appeal No. 1036 of 2008 : 3 : in paying the fine amount. It is the above finding and sentence are challenged in this appeal. 2. The prosecution case is mainly reveals through oral deposition of PW4 and PW5. PW4 was the Preventive Officer attached to the Vamanapuram Excise Range during the relevant period. PW5 is the Excise Inspector of that range. PW4 and PW5 have deposed before the court that they have searched the house of accused on 21.1.2002 at about 4.30 P.M. Ext.P1 is the search list, Ext.P2 is the search memo, Ext.P3 is the arrest memo and Ext.P4 is the arrest intimation. According to the prosecution witnesses, the house of the accused situated in Vamanapuram II village of Nellanad Gramapanchayath and during the time of search accused was there in the house and he was engaged in distilling the illicit liquor. As per Ext.P5 mahazar prepared by PW5, the Excise Inspector, all the contraband articles were seized. M.O.1 to M.O.14 are the utensils as it were found to have been used for distilling the illicit liquor. They found 15 litres of wash kept for the purpose of distillation. Out of the said 15 litres, sample was taken in a 750 ml bottle. Similarly 750ml of arrack was taken as Crl. Appeal No. 1036 of 2008 : 4 : sample out of the 5 litres of arrack kept in a 5 litres capacity can. All the materials were properly sealed and seized. Accused was arrested as per Ext.P3 arrest memo. Ext.P1 is the list of articles seized. According to PW4 and PW5, articles so seized and the accused arrested from the spot were produced before the court on the same day itself. Ext.P6 is the crime and occurrence report. Ext.P7 is the forwarding note submitted before the court below for sending samples for chemical analysis and Ext.P8 chemical analysis report so obtained. Ext.P9 is the thondy list. Thus on the basis of the above materials and evidence, the trial court found that accused is guilty of the charge levelled against him. 3. It is the above finding and sentence challenged by the appellant/accused who is under going imprisonment in the jail. As the appellant is in jail, a counsel is appointed as state brief and I heard Smt. Neena T.V. I also heard the learned Public Prosecutor. 4. Learned counsel appearing for the appellant as state brief submitted that the prosecution has not proved its case in terms of their allegation and therefore appellant is Crl. Appeal No. 1036 of 2008 : 5 : entitled to get an acquittal. The learned counsel pointed out that as per the prosecution allegation the place of occurrence is the house belonging to the accused and therefore it is upon the prosecution to prove that the alleged offence committed at the place suggested by the prosecution. The learned counsel pointed out that while accused himself was examining as DW1 produced Ext. D4 identity card issued by the Election Commission to prove that he is residing in the address given in those documents and not resides at the place as suggested by the prosecution. It is also argued by the learned counsel that as disclosed by Ext. X1 and Ext. X2 assessment register, accused is not residing in the address given in Ext.X1 and Ext.X2. In Ext. X2 house number is 118 and ward number II. In Ext. X1, the ward number of the house described as one situated in ward VI with door number 526. But the learned trial judge, after consideration of the contention of the accused, found that Ext.X1 and Ext. X2 clearly negate the case of the accused that the house wherein door No.II/118 is not that of the accused. In order to come into such a conclusion, the trial court relied upon clarification given by PW1 during his Crl. Appeal No. 1036 of 2008 : 6 : examination. According to me the clarification given by PW1 was not challenged effectively. The trial court also found that the accused did not produce the ration card or certificate from the concerned village office showing his place of residence. Thus the trial court found that Ext. X1 and Ext. X2 are not sufficient to prove the claim of the accused regarding his place of residence. The above observation and finding arrived on by the court below appears to me absolutely correct and therefore no interference is warranted. Regarding other aspects there is no serious challenge. Thus the finding of guilty arrived on by the court below is only to be confirmed and I do so. 5. Regarding the sentence, the learned counsel submitted that the prosecution has not proved that the house in question exclusively belonging to the accused and therefore the contraband liquor namely wash and illicit arrack cannot be found to be belonging to the accused alone and hence a lenient view may be taken with respect to the sentence. 6. On consideration of the above request on merit, it is to be noted that the allegation of the prosecution against the accused is that he was found engaged in distillation of illicit and Crl. Appeal No. 1036 of 2008 : 7 : arrack and consequently 15 litres of wash and 5 litres of arrack were seized from the place of occurrence. Learned counsel submitted that the sentence is disproportionate and exorbitant. Considering the particular facts and circumstances involved in this case, I am of the view that certain modification can be effected with respect to the sentence. Accordingly, the substantial sentence is reduced from three years to one year. As the fine amount awarded is the minimum amount fixed by the statute, no interference is called for. But the default sentence is reduced from six months to two months Simple Imprisonment. Set off under Section 428 Cr.P.C. is allowed. It is born out from the records that accused/appellant has already undergone two months imprisonment as under trial prisoner and thereafter one year imprisonment from 2.1.08 onwards, the date of judgment. As the substantive sentence and default sentence are reduced and set off is allowed, the appellant accused is entitled to be released from the jail forthwith. Therefore, there will be a direction to release the accused/appellant forthwith in case he is not required in other case. Crl. Appeal No. 1036 of 2008 : 8 : In the result, this appeal is disposed confirming the conviction subject to the above modification with respect to the sentence. (V.K. MOHANAN, JUDGE) KMD