IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 CRL.A.No. 1943 of 2007() ------------------------ SC 1417/2002 of the ADDL. SESSIONS COURT(ABKARI CASES), KOTTARAKKARA -------------- APPELLANT: -------------- KOCHUMANY, C.NO. 564 CENTRAL PRISON, TRIVANDRUM BY ADV. V.P.JOLLY[STATE BRIEF] RESPONDENT: --------------- STATE OF KERALA REPRESENTED BY A PUBLIC PROSECUTOR BY PUBLIC PROSECUTOR MS. LAKSHMI RANI K.L. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K. MOHANAN, J. --------------------------------------------------- CRL. APPEAL No. 1943 OF 2007 --------------------------------------------------- Dated this the 26th day of November, 2008 J U D G M E N T This appeal is preferred by the accused challenging his conviction and sentence as per the impugned judgment dated 10.05.07 in Sessions Case No. 1417/2002 of the Court of Additional Sessions Judge (Abkari cases), Kottarakkara. As per the impugned judgment the appellant/accused is convicted u/s 55 (g) of the Abkari Act and sentenced him to undergo rigorous imprisonment for 4 years and to pay a fine of Rs.1,00,000/- and in default to under rigorous imprisonment for 3 more months. 2. Prosecution case is that at 04.04.01 at 11.40 A.M. accused was found in possession of 90 litres of wash kept in 6 tins each of 15 litres capacity for the manufacture of arrack concealed in the rock of western side of Kazhuthurutti river near MSL, Thenmala. Accordingly, crime No. 86/01 was registered in the Thenmala Police station and after investigation the final report was filed before the Judicial First Class Magistrate I, Punalur wherein C.P. 134/01 instituted. Then case was committed to the Sessions Crl. Appeal No. 1943/07 : 2 : Court which later transferred to trial court for disposal. After hearing the accused as well prosecution, a formal charge was framed u/s 55 (g) of Abkari Act which was read over and explained to the accused to which he pleaded not guilty and thereafter prosecution adduced evidence through PW1 to PW5 and marked Ext.P1 to Ext.P5. Material objects 1 to 4 were identified and marked. PW5 is the Sub Inspector of Thenmala Police Station who detected the offence. PW3 was accompanying PW5 at the time of detection. PW4 laid charge. PW1 and 2 attestors to Ext.P1 mahazar. Ext.P2 is the chemical analysis report. Ext.P5 is the F.I.R. in the above crime. According to PW5, on getting information PW5 and party proceeded to the scene of occurrence, after obtaining the mahazar witnesses. According to PW5, on seeing them, the accused attempted to ran away but he was intercepted and questioned. Scene of occurrence was searched in the presence of witnesses and accordingly found wash and implements for manufacturing of illicit arrack which was kept inside the rocks. On detailed examination, it was found that six tins, each of 15 litres capacity, kept concealed on the bottom of the Crl. Appeal No. 1943/07 : 3 : rock and were filled with wash. Beside the above material they also seen aluminium pot, aluminium vessel, earthen pot, earthen vessel etc kept nearby. The contents of the tins identified as wash by tasting and smelling by the raiding party as well as the witnesses. Then, after preparing Ext.P4 arrest memo, the accused arrested at about 11.45 A.M. PW5 conducted further investigation which was verified by PW4. PW3 also deposed in term of PW5 who identified M.O.1 to M.O.4. He had also deposed that accused was chasing from a distance of 20m. Though PW1 and 2 are cited as independent witnesses to prove the seizure, they turned hostile. 3. As the accused is undergoing imprisonment state brief is appointed to prosecute the appeal. I have heard the learned counsel for appellant and also the learned Public Prosecutor. 4. Learned counsel for the appellant submitted that in this case , the case of the prosecution is not established beyond reasonable doubt. It is the case of the counsel that except the interested testimony of the official witnesses, no independent Crl. Appeal No. 1943/07 : 4 : witness supported the prosecution case and as such the evidence of official witnesses are not corroborated from any independent source. According to the learned counsel, the above aspect is very relevant in this case since the sample alleged to have been taken at the spot, reached in the court only after 48 days. It is also pointed out by the learned counsel that when the material objects produced before the court, the same did not bear the label which alleged to have been pasted on the M.Os at the time of alleged seizure etc. It is also pointed out by the learned counsel that the utensils which used for keeping the wash were also not produced and the above defects will go against the prosecution case. 5. The trial court found that the evidence of PWs 3 and 5 together with Ext.P1 would reveal that the contraband articles were seized from the appellant accused. Ext.P1 is the seizure mahazar which is a contemporary document which would show the steps adopted by the detecting party at the time of effecting seizure. It is also relevant to note that the accused was arrested from the spot itself. PW5 has categorically stated that the offence was detected on 4.4.2001 and as per Ext.P3, the Crl. Appeal No. 1943/07 : 5 : contraband articles were produced before the court on 21.5.2001. It is also deposed by PW5 that after the seizure of the article, the same were kept under safe custody. Ext.P3 dated 4.4.2001 is the property list proved through PW4. When the same were produced before the court, by making endorsement on Ext.P3 , the court has directed to keep the same in safe custody . Therefore, the prosecution properly explained the delay. The trial court based upon the decisions reported in Vikraman Vs. State of Kerala (2007(1) KLT 1010) and Narayani Vs Excise Inspector 2002(3) KLT 725 held that the delay would cause no prejudice to the accused especially when he was arrested from the spot. In the light of the above facts and circumstances, I find no illegality or perversity in the finding arrived on by the court below and therefore the conviction is confirmed. 6. With respect to the sentence, the learned counsel submitted that the appellant accused had already undergone imprisonment for a substantial long period, either as pretrial prisoner or even after the judgment and hence prayed to show leniency towards him. After assessment of the over all situation, I Crl. Appeal No. 1943/07 : 6 : am of the view that slight modification be made with respect to the sentence. Accordingly, the sentence of imprisonment for the period of four years awarded in S.C.No.1417/2002 is reduced to 2 years and no interference is called for with respect to the fine as the same is only the minimum amount prescribed by the statute. But the default sentence is reduced from three months to one month. Set off is allowed. With the above modification with respect to the sentence, the appeal is dismissed, confirming the conviction. (V.K. MOHANAN, JUDGE) kmd