IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 CRL.A.No. 1962 of 2003() ---------------------------------- SC.147/2000 of ADDL. SESSIONS COURT FAST TRACK (ADHOC-II), TRIVANDRUM .................... APPELLANT/ACCUSED: --------------------------------- VIJAYAKUMARI @ VELLACHI, D/O.KRISHNAMMA, VETTIYARIKATHU VEEDU, ALUKADU, MUTTATHARA VILLAGE. BY ADV. MR.SASTHAMANGALAM S.AJITHKUMAR MR.KRISHNADAS P. NAIR SMT.K.L.SREEKALA RESPONDENT/COMPLAINANT: -------------------------------------------- STATE, REPRESENTED BY THE ADDITIONAL PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1962 OF 2003 ------------------------------ Dated this the 8thday of June, 2009 JUDGMENT This appeal is preferred against the conviction and sentence passed under Section 55(a) of the Abkari Act in S.C.No.147/2000 whereby the accused had been convicted and sentenced to undergo R.I for three months and to pay a fine of Rs.One lakh and in case of default, to undergo R.I for a period of one month more. It is against that decision, the present appeal is preferred. 2. It is the case of the prosecution that on 22.2.1998 at about 12.15 p.m the accused was found in possession of 10 liters of arrack in a plastic bucket and another 2 liters in a small bucket and she was arrested, liquid was seized, sample was taken and sent for chemical examination which revealed the presence of alcohol and therefore, the court below found her guilty and convicted her for the said offence. 3. Learned counsel for the appellant would submit before me that the evidence of the official witnesses are not 2 CRL.A.NO.1962/2003 trustworthy and the independent witness had turned hostile and therefore, the finding of guilt is irregular which is liable to be set aside. PW1 is the independent witness. He had not supported the prosecution case and turned hostile. It is submitted that the accused is residing in a hut. PW2 is the woman police constable, who had accompanied the Additional Sub Inspector to the place and it is deposed by her that the accused was found to be in possession of the arrack as described and therefore, she was arrested and arrack was seized and she had identified it as MOs1 and 2. In the cross examination, attempt has been made to bring about the time when the address of the accused was ascertained and it is suggested that she is deposing just to help the Superior Officer who had detected the case. PW3 is the police constable who had accompanied the Additional Sub Inspector at the time of detection. He speaks about the proceedings and also reaching the house of the accused and finding her with two buckets which contained the liquid that has been seized, sample taken and case registered and further proceeded. PW4 has been given up by the prosecution and 3 CRL.A.NO.1962/2003 PW5 is the Additional Sub Inspector of Police. He had deposed that he was an Additional Sub Inspector on the date when the crime was detected. It is submitted that they got reliable information regarding the sale of illicit arrack by the accused and therefore proceeded to the place of the accused with a police constable, reached the house and found the accused with two buckets which contained liquor which was tasted and smelt and revealed to be illicit arrack. He also speaks about the seizure etc. He is the person, who had detected and conducted the investigation. He had stated that it may be a mistake that in the accused's copy the time is shown as 2.15 p.m. instead of 12.15 p.m. He had also stated about the fact that MOs 1 and 2 were seized from the place and it is only an omission to record the same. I have referred to the documents as well and Ext. P4 which is the chemical examination report would reveal that the sample which was sent for analysis was found in tact and tally with the seal provided. It also contained 18.73% by volume of ethyle alcohol. The question that has to be considered is whether in the absence of independent evidence, the court can arrive 4 CRL.A.NO.1962/2003 at a decision of guilt on the accused. It is a settled position of law that just because of one is official witness, the evidence need not be ignored. But the only caution is that the evidence of such a witness has to be meticulously scanned and scrutinized to find out intrinsic reliability of the same. Here a head constable, a woman constable and the Additional Sub Inspector of Police, on information had visited the house and found the accused in possession of the illicit liquor, had taken sample, sealed it and sent it for chemical analysis which revealed the presence of ethyle alcohol. 4. I do not find any material irregularity. Of course there are certain omissions here and there. Especially it has to be remembered that the detection is somewhere in the year 1998 and examination of the witnesses are in 2003 which is almost 5 years after the incident. I do not find anything to discard the evidence of official witnesses in this case and therefore I agree with the finding of the court below that the accused was found in possession of illicit arrack and therefore, she is guilty under Section 55(a) of the Abkari Act. 5. Now coming to the sentence. The accused is a lady 5 CRL.A.NO.1962/2003 with three small children and it is stated that she is in a very poor financial circumstance. Whatever it may be, possessing arrack itself is an offence and therefore, at the most considering the pathetic situation, the court can extent leniency which I am inclined to do in this case. A perusal of the printed judgment would reveal that she was in remand from 22.2.1998 to 2.4.1998 i. e approximately 40 days. I feel that imprisonment can be reduced to 2 months. At the time of granting bail, she was directed to deposit Rs.15,000/= which is seen deposited vide memo dated 12.12.2003. She had at least complied with part of the sentence. So, there also some leniency can be shown. The default sentence can be reduced to one week simple imprisonment. 6. In the result the criminal appeal is disposed of as follows: 1. Finding of guilt under Section 55(a) of the Abkari Act is confirmed. 2. The sentence is modified and the accused is directed to undergo S.I for a period of 2 months and to pay a fine of Rs. One lakh and 6 CRL.A.NO.1962/2003 in default to undergo S.I for a period of one week considering the fact that she had already deposited Rs.15,000/= as ordered by this court at the time of suspension of the sentence. The amount deposited be credited to the account of fine. The accused is also entitled to get the period of set of under Section 428 of the Criminal procedure Code. M.N. KRISHNAN, JUDGE cl 7 CRL.A.NO.1962/2003 8 CRL.A.NO.1962/2003