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. 1835 of 2003() ---------------------------------- SC.53/2002 of COURT OF ADDL.SESSIONS JUDGE (ADHOC-II) THODUPUZHA. ........................................................................................... APPELLANT(S): ACCUSED: -------------------------------------- AUGUSTINE, S/O. THOMAS, KINANICKAL HOUSE, VELLIYAMATTOM VILLAGE, POOMALA KARA, OONJAMPADY BHAGAM. BY ADV. SRI.RAJU K.MATHEWS RESPONDENT(S): COMPLAINANT: ------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE CIRCLE INSPECTOR OF POLICE, KANJAR, IDUKKI DISTRICT. BY ADV.SRI.C.M.NAZAR, PUBLIC PROSECUTOR. 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.1835 OF 2003 -------------------------- Dated this the 24th day of June, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the conviction and sentence passed in S.C.53/2002 of the Additional Sessions Judge (Adhoc-II), Thodupuzha. The accused was charge sheeted by the investigating agency u/s.55(a) and 8 (1) (2) of the Abkari Act. The court found him guilty u/s.55(a) of the Abkari Act and sentenced him to undergo rigorous imprisonment for a period of 4 years and to pay a fine of Rs.1 lakh and in default, imprisonment for a period of 2 months. It is against that decision the accused has come up in appeal. The points that arise for determination are, 1. Whether there are sufficient materials to hold that the accused has committed offence u/s.55(a) of the Abkari Act ? 2. Whether the punishment imposed is excessive ? 2. Point Nos.1 and 2 :- It is the case of the prosecution CRL.A.No.1835 OF 2003 2 that on 10.6.2000 at about 1.25 P.M., the Sub Inspector of police saw the accused by the side of Poomala CSI Road at Poomala Kara, with a bottle and glass and on seeing them, he dropped the bottle and glass and ran away. He was followed and apprehended. He was brought back to the place where he had dropped the bottle and glass and in his presence it was taken and on examination, was found to contain 400 ml. of illicit arrack by smell and taste and thereafter sample was taken, sealed and he was arrested, produced before the court and the liquid was sent for chemical analysis. In the Lower Court, Pws.1, 5 and 6 were examined as official witnesses and Pws.2 to 4 were examined as independent witnesses. Pws.3 and 4 did not support the case of prosecution. PW1 is Sub Inspector of police, who had detected the case. He had deposed before the court that, he found the accused with a bottle and glass in his hand and on seeing the police party, he had dropped the bottle and glass and ran away and that he was apprehended, brought to the place and on examination, found that the liquid was illicit CRL.A.No.1835 OF 2003 3 arrack on smell and taste. He was arrested, sample was taken and was produced before the Court. He has very clearly deposed to this fact in the chief examination and it can also be seen in this case that the bottle which was sent for chemical examination had come back from the laboratory and even it contained slips and the signature which makes it leak proof. Though he has been cross examined at length, nothing is brought out to descredit his evidence. PW5 is a police constable, who had accompanied the police party and he had also spoken in the same line as of PW1. In the cross examination, he had deposed that the accused was seen at a distance of 3 mtrs. and he ran to a distance of 10 mtrs. and he was apprehended and arrested. PW2 is an independent witness, who had turned hostile. The other witnesses also had totally turned hostile. Ext.P10, chemical examination report, would show that the seal which was on the packet was intact and tallied with the samples produced and it contained 42.28 % by volume of ethyl alcohol. The materials available would CRL.A.No.1835 OF 2003 4 conclusively establish that the accused was in possession of 400 ml. of liquid which when sent for chemical examination, revealed that it contained 42.28 % by volume of ethyl alcohol. So far as the procedural formalities are concerned, the seal with which the sample is sealed is seen in the scene mahazar itself and the bottle has even come back. It was produced before the court within a period of 2 days in a proper sealed manner and therefore all the procedural formalities are properly complied in this case. Now let me consider the arguments raised by the learned counsel for the appellant. The learned counsel for the appellant strongly contends before me that, an offence u/s.55(a) of the Abkari Act will not lie for the reason that there is no export, import or transit or possession in the course of transit. He is supported by the Division Bench rulings of this court and therefore it can not be proper for this court to find him guilty u/s.55(a) of the Abkari Act. But then the learned counsel would contend that, the prosecution has failed to prove that the offence will come u/s.8(1) or (2) of the Abkari Act. According to him CRL.A.No.1835 OF 2003 5 Ext.P10, chemical examiners report, only reveals that the liquid seized would contain 42.28% by volume of ethyl alcohol. Now let me look into the definition of arrack. It is an exclusive definition which reads as follows :- `Arrack means any portable liquor other than the toddy, bear, spirits of wine, wine, Indian made spirit, foreign liquor and any medicinal preparations containing alcohol, manufactured according to the formula prescribed in forma copia approved by the Govt. of India or Govt. of Kerala or manufactured according to the formula approved by the Govt. of Kerala.' The learned counsel contends that there is no evidence in this case to prove that the liquid seized is arrack. One has to be practical and alcohol is known by the chemical name ethyl alcohol and alcohol under the common parlance is known as arrack as well. So the liquid which contains any percentage of ethyl alcohol and which is a portable liquor can come within the ambit of the definition of arrack. The case of the accused in this matter is of a total denial. He has no case that he is in possession of any liquid CRL.A.No.1835 OF 2003 6 other than arrack. It is in this backdrop, the expertise of persons who had investigated should be considered. By smell and taste they had found it to be arrack. In order to confirm that it contains ethyl alcohol it has been sent for chemical analysis. So the smell and taste coupled with the scientific finding of the percentage that the volume of ethyl alcohol contained in the liquid makes it clear that it is arrack. There are no indication or contra materials to show that it is something other than arrack in this case, especially in the absence of any contention to that effect. Therefore, I have no hesitation to hold that the accused was in possession of arrack which is punishable u/s.8 (1) and (2) of the Abkari Act. 3. The learned counsel request for consideration for release under the provisions of Probation of Offenders Act. It is the liquid prohibited to be used in the State and it is the greatest social menace that has affected the younger generation, which has proved to be very much against the well settled system of Indian culture and heritage. I am not inclined to use my CRL.A.No.1835 OF 2003 7 discretion to extend the provisions of Probation of Offenders Act in this case. But I am sure that the punishment imposed is very severe and the appellant does not deserve that much of punishment. The court below has convicted him for 4 years imprisonment with a fine of Rs.1 lakh and a default sentence of 2 months. Considering the age of the person, the quantity involved and the other circumstances, I am inclined to reduce the sentence of imprisonment for a period of 2 months and the default sentence be reduced to a period of 1 month, in case of non payment of fine. In the result criminal appeal disposed of as follows :- 1. I find the accused guilty u/s.8(2) of the Abkari Act and set aside the conviction u/s.55(a) of the Abkari Act.\ 2. The sentence is modified and the accused is sentenced to undergo simple imprisonment for a period of 2 months and to pay a fine of Rs.1 lakh and in default of the same to undergo simple imprisonment for one month. He shall be entitled to set off as contemplated CRL.A.No.1835 OF 2003 8 u/s.428 of Cr.P.C. as well as the period he had undergone before the suspension of the sentence by this court. M.N.KRISHNAN, JUDGE ami.