IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 19TH JUNE 2009 / 29TH JYAISHTA 1931 CRL.A.No. 1984 of 2003() ------------------------ SC.81/2001 of ADDL.SESSIONS COURT (ADHOC), KASARAGOD .................... APPELLANT(S): ACCUSED --------------------- KUTTIYAN @ T.K.RAGHAVAN, S/O. KUNHIKANNAN, ARAYI, KANHANGAD VILLAGE, HJOSDURG TALUK. BY ADV. SRI.M.THAMBAN SMT.T.SUDHAMANI RESPONDENT(S): COMPLAINANT & STATE ---------------------------------- 1. THE EXCISE INSPECTOR, HOSDURG EXCISE RANGE. 2. THE STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.TEK CHAND THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.Appeal .No. 1984 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of June, 2009 JUDGMENT Challenge in this appeal is to the judgment of the learned Additional Sessions Judge (Adhoc I), Kasargod dated 27/11/2003 convicting the appellant/accused under Section 8(2) of the Abkari Act and sentence to undergo rigorous imprisonment for 3 ½ years and to pay a fine of Rs. 1 lakh, in default, to undergo rigorous imprisonment for a further period of one year. 2. The case of the prosecution as shaped in evidence before the trial court is that on October 27,1998 at about 6.30 p.m., he was found to be transporting 9 litres of Arrack in a plastic can along the road near Arayi Palam and that thereby committed an offence punishable under Section 8(2) of the Abkari Act. The learned Judicial First Class Magistrate (I), Hosdurg committed the case to the Sessions Court, Kasargod from where it was made over to Assistant Sessions Court, Hosdurg. Subsequently, the same was withdrawn and made over to the Additional Sessions Court (Adhoc I), Kasargod. CRA.No.1984/03 2 3. Before the Sessions Court, the appellant/accused pleaded not guilty to a charge under Section 8(2) of the Abkari Act. PWs 1 to 5 were examined, Exts.P1 to P4 were marked and MO1 was produced by the prosecution. When questioned under Section 313 Cr.P.C by the trial court, the appellant/accused denied the incriminating material and no defence evidence was adduced. The lower court accepted the evidence adduced by prosecution and found the appellant/accused guilty of offence punishable under Section 8(2) of the Abkari Act, convicted him and sentenced him as aforesaid. The Accused challenges the said conviction and sentence in this appeal. 4. The following points arise for consideration in this appeal. 1) Whether the accused was found in possession of 9 litres of Arrack near Arayi Palam on October 27, 1998 at about 6.30 p.m as alleged by the prosecution. 2) Whether the conviction of the appellant by the lower court can be sustained. 3) What is the proper punishment to be imposed ? CRA.No.1984/03 3 Point Nos.1 and 2 5. To substantiate the case of prosecution, PWs 1 to 5 were examined and Exts.P1 to P4 were marked and MO 1 was produced on the side of prosecution. PW1 is the preventive officer, who detected the crime. PW 3 is another preventive officer who accompanied PW1. PW2 is the independent witness who witnessed the incident. PW 4 is the Excise Inspector who conducted investigation and laid the charge. Ext.P4 is the report of the Chemical Analysist which shows that the contraband articles seized from the appellant is Arrack. The main question for consideration in this case is whether the prosecution has succeeded in proving that the appellant was found in possession of 9 litres of Arrack on October 27, 1998 at about 6.30 p.m. as alleged by the prosecution. 6. The learned counsel for the appellant argued that as the independent witness- PW2 turned hostile, the trial court has erred in believing the evidence of PWs 1 and 3, who are the Excise officials. There is no merit in the above contention. It is settled law that conclusion can be entered on the basis of the evidence tendered by the CRA.No.1984/03 4 official witnesses, if their version is found to be reliable. I have gone through the evidence of PWs 1 and 2. No serious inconsistency or contradictions were pointed out in their evidence to render their evidence unreliable. Defence counsel was not able to shake their evidence in cross examination. Further it was not even suggested in cross examination that they are having any prior acquaintance or enmity towards the appellant. Under these circumstances, the lower court is perfectly justified in believing their evidence and finding that on October 27, 1998 at about 6.30 p.m., the appellant was found to be in possession of 9 litres of Arrack in MO 1 cannas and finding him guilty under Section 8(2) of the Abkari Act. That being so, the conviction of the appellant by the lower court has to be confirmed. Point No.3 As regards the sentence, the trial court sentenced the appellant to undergo rigorous imprisonment for 3 ½ years and to pay a fine of Rs. 1 lakh, in default, rigorous imprisonment for a further period of three months. The accused is aged 52 years. Further the incident CRA.No.1984/03 5 occurred about 10 years ago. He was remanded from October 27, 1998 till 02/12/1998. Under these circumstances, I feel that the substantive sentence imposed by the lower court can be reduced to the period of remand already undergone by him. As regards fine, statutory fine of Rs. 1 lakh, being the prescribed minimum, is maintained in view of the principles laid down by the Apex Court in Nhaliyan Makkil Raveendran v. State of Kerala ( 2008 (5) Supreme Court Cases 436), but the default sentence is reduced to two months. With the above modification regarding sentence, the appeal is dismissed. P.Q.BARKATH ALI JUDGE sv. CRA.No.1984/03 6