IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN WEDNESDAY, THE 14TH DAY OF DECEMBER 2011/23RD AGRAHAYANA 1933 CRA.No. 1931 of 2004 ( ) SC.10/2002 of ADDITIONAL DISTRICT COURT (ADHOC), MANJERI APPELLANT/ACCUSED: 1 KUTTAN @ DAMODHARAN, S/O.GOVINDAN, ALIPARAMBIL HOUSE, THIRUVALI MALAPPURAM DISTRICT. BY ADV.SRI.BABU S. NAIR RESPONDENT/STATE: 1 THE STATE OF KERALA, REP. BY THE EXCISE INSPECTOR, MANJERI EXCISE RANGE THROUGH THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM KOCHI 31. BY PUBLIC PROSECUTOR, SMT.S.HYMA THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.S.GOPINATHAN, J. ------------------------------ Crl.A. No.1931 OF 2004 -------------------------------- Dated this the 14th day of December, 2011 J U D G M E N T ~~~~~~~ The appellant was convicted by the Additional Sessions Judge, (Adhoc–I), Manjeri in Sessions Case No.10/2002 for offence under Section 55(a) of the Abkari Act and sentenced to rigorous imprisonment for one year and a fine of rupees one lakh with a default sentence of simple imprisonment for six months. Assailing the above conviction and sentence, this appeal is preferred. 2. The prosecution case is that, on 17.8.1999, at 5.30 p.m, while PW1, the Excise Inspector, Malappuram Range, moving on patrol duty at Thiruvally along Thiruvally-Chattakkad road the appellant was found carrying 2 ½ litres of illicit arrack in a five litre capacity jerry can which was marked as MO1. The contraband was seized after testing the same by smell and taste for which Ext.P1 seizure mahazar was prepared. The appellant was arrested for which Ext.P2 arrest memo was prepared and Ext.P3 notice was issued. From the contraband seized, 200 ml Crl.A.No.1931/2004 2 was taken in a sample bottle. The sample bottle and the remaining quantity of liquor were sealed and produced before PW4, the Circle Inspector of Excise, who, produced the material objects before the committal court and got the sample analysed for which Ext.P9 report of the Chemical Examiner certifying that the sample contained 36.10% by volume of Ethyl Alcohol was obtained. The investigation was completed by PW5 and laid the chargesheet before the Judicial Magistrate of the 1st Class, Manjeri. Since the offence alleged is triable by a court of session, the learned Magistrate by order dated 15.12.2001 committed the case to the court of session, Manjeri. From there it was made over to the Additional Sessions Judge. 3. The Additional Sessions Judge issued process, responding to which the appellant entered appearance. When the charge was framed and read over, the appellant pleaded not guilty. Therefore, he was sent for trial. On the side of the prosecution, PWs 1 to 5 were examined. Exts.P1 to P9 and MOs 1 and 2 were marked. After closing the evidence, the appellant was questioned under Section 313(1)(b) of the Code of Criminal Crl.A.No.1931/2004 3 Procedure. He took a defence of total denial. Though he cited the Secretary of the Grama Panchayat to be examined as a defence witness, the learned Additional Sessions Judge declined the same. On appraisal of the evidence, the learned Additional Sessions Judge arrived at a finding against the appellant, Consequently he was convicted and sentenced as above. 4. I have heard Sri.K.Rakesh on behalf of the appellant and Smt.S.Hyma, the learned Public Prosecutor. Perused the records and judgment impugned. 5. PW1, the Excise Inspector, would depose that on 17.8.19989, while he moving on patrol duty he found the appellant coming across with MO1 jerry can in his hand and on inspection, it was noticed that MO1 contained 2 ½ litres of illicit arrack. It was seized for which, Ext.P1 seizure mahazar, wherein PWs 2 and 3 are attestors, was prepared. 200ml was taken as sample. The appellant was arrested for which, Ext.P2 arrest memo was prepared and Ext.P3 notice was issued. Though PW1 was subjected to searching cross examination, no material Crl.A.No.1931/2004 4 was disclosed to disbelieve him. PW2, the Preventive Officer, would support the evidence adduced by PW1. PW3, the independent witness, who is an attestor to Ext.P1 denied the attestation as well as the arrest and seizure. Since PW3 turned hostile, I had a very critical scrutiny of the evidence of PWs 1 and 2. As observed by the learned Additional Sessions Judge there is no reason to disbelieve them. Their evidence would show that MO1 with 2 ½ litres of arrack was seized from the appellant. From it, 200 ml was taken as sample and sent for chemical examination. Ext.P9, the report of the Chemical Examiner proved through PW5 would show that the sample contained 36.10% by volume of Ethyl Alcohol. There is no case for the appellant that PWs 1, 2, 4 or 5 were anyway motivated against the appellant so as to implicate him with an offence as alleged in this case. Material objects and the documents were produced before the court without any delay. There is nothing on record to come to a conclusion that the material objects were anyway tampered at any time. One of the defence that was advanced is that there was no road by name Chattakkadu – Chellithoud as stated in Ext.P1. It is in that attempt the Crl.A.No.1931/2004 5 Secretary of the Grama Panchayat was summoned to produce the map. It is not disputed that in case there is a map in the Panchayat as alleged by the appellant he would have got it in the event he had applied under the Right to Information Act and produced before Court. It appears that, it is in that circumstance, the learned Additional Judge declined the request for summoning the Secretary of the Panchayat to produce the map. Adding to that even if it is assumed that the road from where the contraband was seized is having some other name that would not affect the credibility of the evidence of PWs 1 and 2 regarding the arrest and seizure. Therefore, I find that there is little reason to diverge with the conclusions arrived by the learned Additional Sessions Judge. I find that the conviction under challenge is based upon cogent evidence and requires no interference. 6. Regarding the sentence, it is disclosed that the appellant is a coolie then aged 53 years and now he is above 60 years. Taking into account of the status, age and quantity of the contraband involved, I find that the appellant is entitled to a Crl.A.No.1931/2004 6 little leniency regarding the substantive sentence and that sentence of rigorous imprisonment for six months with the minimum fine imposed by the trial court would meet the ends of justice. 7. In the result, the appeal is allowed in part. While confirming the conviction, the substantive sentence is reduced to rigorous imprisonment for six months. The minimum fine imposed with default sentence is sustained. The trial court shall see the execution of the sentence and report compliance. The under trial imprisonment, if any, shall be set off. (P.S.GOPINATHAN, JUDGE) ps/17/12