IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 CRL.A.No. 1197 of 2003() ------------------------ SC.159/2001 of TE ADDL. DISTRICT & SESIONS COURT(FAST TRCK COURT NO.I, MANJERI. .................... APPELLANT(S): ACCUSED ------------------------- MOIDEENKUTTY, S/O.SAIDU, AGED 75 YEARS, MOORIKUNHARAMMAKKANAKATA, NADAKKAVU, RAYIRAMANGALAM. BY ADV. MRI.K.P.MUJEEB RESPONDENT(S): COMPLAINANT ------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1197 OF 2003 ------------------------------ Dated this the 24th day of June, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed in S.C.No.159/2001 of the Additional Sessions Judge,(Fast Track Court-I), Manjeri. The accused was found guilty under Section 55(i) of the Abkari Act and sentenced him to undergo R.I for 5 years and to pay a fine of Rs. One lakh and in default, to undergo further imprisonment for two years. The set off was also allowed. It is against that decision, the accused has come up in appeal. It is the case of the prosecution that at 6.15 p.m on 17.4.2000 the accused was found in possession of 15 liters of Indian made foreign liquor of different varieties in contravention of the provisions of the Abkari Act for the purpose of sale and therefore, he is liable to be punished. On examination of the materials, both documentary and oral, the trial court found the accused guilty under Section 55(i) of the Abkari Act and sentenced him to undergo the punishment mentioned above. 2. The points that arise for determination are (1) whether there is sufficient evidence to help the accused under Section 2 CRL.A.NO.1197/2003 55(i) of the Abkari Act (2) Is there anything to interfere with the decision rendered by the court below and (3) whether the punishment is excessive. 2. Points 1 and 2: It is the case of the prosecution that on 17.4.2000 the accused was found in possession of 5 bottles of Wine Grape Brandy, 2 bottles of Shiva’s Wine Brandy, 2 bottles of Western Superior XXX Rum and 1 bottle of XXX Rum of 180 ml capacity and it was intended for sale. The accused was apprehended and evidence is tendered by PWs 1 to 3. PW1 was the Circle Inspector of Police at the relevant point of time. It is deposed by him that when they reached Pandimuttam road junction, the accused, who is also accused in other abkari cases, was found coming back. After stopping the jeep, he was asked about its contents for which he did not give any proper reply. On examination, liquor of the above quality and quantity was found and it was understood that it was intended for sale PW1 had deposed that auto rickshaw drivers are the witnesses. It is also deposed by PW1 that for the purpose of selling liquor, people take circuit routes. He had also spoken about 3 CRL.A.NO.1197/2003 the sampling and preparation of the forwarding note etc and nothing is brought out to discredit his evidence. The court also found that the bottles contained the seal of the Beverages Corporation which would show that there cannot be any question of tampering with the same. PW2 is the person, who had accompanied PW1, and he had also spoken about the recovery, seizure and sealing of the bottles and he had denied the suggestion that as there was a dispute between the accused and one of his relatives, he had taken vengeance on the accused by booking a false case. PW3 is an independent witness. He is an auto driver by profession. He had deposed before the court that while he was coming in his auto rickshaw, as he saw the Sub Inspector of Police near the accused, he stopped the vehicle and went there and he had also stated that the accused is in the habit of selling liquor and he is a neighbour. Though he has been cross examined, nothing has been brought out to discredit his evidence and he had clearly stated that he reached the place when the police were searching the accused. There is nothing to suggest that PW3 has any axe to grind with the accused. 4 CRL.A.NO.1197/2003 The other witnesses are the Village Officer and the person who had laid the charge. So, from the evidence of PWs 1 to 3, it is crystal clear that the accused was apprehended at the alleged time with the bottles of liquor and it had been seized from him. It is argued that there is a delay of 11 days in producing the sample before the court. Since the seized bottles contained the seal of the Beverages Corporation, the question of any tampering does not arise and so, no prejudice is caused to the accused. The antecedents of the accused would show that he was involved in other cases and PW3, an independent witness, also had spoken about the same. So, I do not find any mistake committed by the court below in finding the accused guilty under Section 55(i) of the Abkari Act. 3. Now turning to the question of sentence. The court below has sentenced the accused to undergo imprisonment for 5 years and to pay a fine of Rs. One lakh and in default, to undergo imprisonment for a period of two years. The learned counsel has submitted that considering the age of the accused and a large family to be looked after by him, 5 CRL.A.NO.1197/2003 leniency has to be shown on him. 4. The accused was not dealing with any prohibited liquor, but was dealing with the liquor of the Kerala State Beverages Corporation with the label on it. It is true that he is not a person who is authorized to sell, but I feel that the punishment imposed appears to be little harsh on this matter, which requires interference and some leniency. Taking into consideration the facts and circumstances coupled with his age, I reduce the sentence of imprisonment to one year and the default sentence is reduced to 6 months. In the result, the criminal appeal is disposed of as follows: 1. The finding of guilt under Section 55(i) of the Abkari Act is confirmed. 2. The sentence is modified and the accused is sentenced to undergo R.I for one year and to pay a fine of Rs. One lakh and in default of which, he shall undergo further simple imprisonment for a period of 6 months. 3. He will be entitled to set off as 6 CRL.A.NO.1197/2003 contemplated under Section 428 of the Code of Criminal Procedure and the lower court shall execute the sentence. M.N. KRISHNAN, JUDGE cl 7 CRL.A.NO.1197/2003 8 CRL.A.NO.1197/2003