IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 CRL.A.No. 1848 of 2003() ------------------------ SC.327/2001 of III ADDL. SESSIONS COURT (ADHOC), FAST TRACK COURT NO.I THRISSUR .................... APPELLANT: ACCUSED --------------------- VASU S/O. KOCHUKUTTAN, KALAPURACKAL HOUSE, VELLIKULANGARA. BY ADV. SRI.T.N.MANOJ SRI.DINESH R.SHENOY RESPONDENT : COMPLAINANT -------------------------- EXCISE INSPECTOR OF IRINJALAKUDA EXCISE RANGE, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY P.P.SMT. M.K PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. ........................................... CRL.A.NO.1848 OF 2003 ............................................. Dated this the 21st day of August, 2009 J U D G M E N T This is an appeal preferred against the conviction and sentence passed by the Third Additional Sessions Judge, (Adhoc), Fast Track Court No.I, Trichur in S.C.No.327/2001. The accused was charge sheeted for an offence under Section 55(g) of t he Abkari Act and was found guilty thereunder and sentenced to undergo R.I for one year and to pay a fine of Rs. One lakh and in default to undergo R.I for three 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 materials are sufficient to hold the accused guilty under Section 55(g) of the Abkari Act and (2) in case of guilt, what is the proper sentence. 3. Heard the learned counsel for the appellant as well as the Prosecutor. It is the case of the prosecution that on 26.11.1999 at about 4 p.m in front of the house of one Jayan, the accused was found in possession of a Can having : 2 : CRL.A.NO.1848 OF 2003 the capacity of 35 litres. He was intercepted and the liquid by taste and smell was found to be wash. Thereafter sample was taken in a 750 ml bottle which was sealed and signed in the presence of the witnesses and the jerry can also was taken into custody. 4. It is also the case of the prosecution that thereafter the accused had told them that one Raghavan is waiting near a thodu and therefore they proceeded there and found out a cycle tube, some clothes and a plastic cup. It was also seized but the said Raghavan could not be apprehended. The learned counsel for the appellant strongly contends before me that the evidence is not convincing. The legal question that how far the official witnesses can be relied on had been considered by a learned Judge of this Court in the decision reported in Sivaraman v. State of Kerala (1981 KLT SN Page 9 Case 27). In that decision, the learned Judge held that it has become a habit that the independent witnesses turn hostile to the prosecution for the reasons best known to them. Thereafter the question was answered and it was stated that if the evidence of the : 3 : CRL.A.NO.1848 OF 2003 official witnesses on a meticulous scrutiny is found out to be reliable and acceptable, it can be relied upon for the purpose of the conviction. So far as the procedural formalities are concerned in this case, it can be seen that there is no much delay in producing the material objects before the court. It had been received in a sealed condition and had been sent for chemical analysis and the report of the chemical analyst also would show that the seal on the bottle was intact and found tallied with the sample seal provided. The sample liquid contained 11.66% by volume of ethyl alcohol. The evidence which supports the case of the prosecution is that of PWs 1 and 4. 5. PW1 is the Preventive Officer of the excise range. He had deposed that the accused was found near the house of Jayan and they followed him and the accused became perplexed. The can which he was carrying was asked to be put down and thereafter it was examined and found to be wash used for the manufacture of arrack. He also speaks about taking of the sample, sealing and further on information supplied by the accused they proceed to a place : 4 : CRL.A.NO.1848 OF 2003 near the thodu from where they recovered a cycle tube, plastic cup and some clothes. The person who was expected to be there was not seen and he could not be apprehended. A reading of the evidence in cross examination also would show that there is no serious contradictions or inconsistency. When a question was put with respect to the label not seen in MO1, he had deposed that it would have been lost on account of the passage of time. It has to be remembered that the offence is of the year 1999 and the examination is of the year 2003. 6. PW4 was a guard who had accompanied PW1 and he had specifically spoken about the way in which the things had been done. In the cross examination also nothing is brought out to discredit his evidence and he had precisely spoken about the way in which the sample was taken, bottle was sealed and label was pasted. So, the evidence of PWs 1 and 4 inspires confidence and just because the independent witnesses had turned hostile, it will not destroy the case of the prosecution. Therefore, from the materials available, I find that the court below was right in : 5 : CRL.A.NO.1848 OF 2003 holding that the accused had committed guilt under Section 55(g) of the Abkari Act. 7. Now turning to the question of sentence. The learned counsel would contend that the accused is having his mother wife and children and there is nobody to look after them and they will become destitutes and therefore some leniency should be shown. It is true that attempt to distill illicit arrack is a major social menace but considering the facts and circumstances, I am inclined to reduce the sentence to one of imprisonment for three months and a fine of Rs. One lakh with a default sentence of one month S.I. 8. In the result, the criminal appeal is disposed of as follows: 1.The finding of guilt under Section 55(g) of the Abkari Act is sustained. 2. The sentence is modified and the accused is sentenced to undergo S.I for three months and to pay a fine of Rs. One lakh and in default to undergo further S.I for one month. He shall be entitled to set off as : 6 : CRL.A.NO.1848 OF 2003 contemplated under Section 428 of the Cr.P.C. The lower court shall execute the sentence. M.N.KRISHNAN, JUDGE cl : 7 : CRL.A.NO.1848 OF 2003