IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 6TH MAY 2011 / 16TH VAISAKHA 1933 Crl.Rev.Pet.No. 1283 of 2011() ------------------------------------ CRA.12/2008 of I ADDL. SESSIONS COURT, KOLLAM ST.7/2005 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM .................... REVISION PETITIONER/APPELLANT/ACCUSED ------------------------------------------------------ K.BABU, HOUSE NO.B-22, TELEPHONE EXCHANGE QUARTERS, THIRUMULLAVARAM, KOLLAM. BY ADV. SRI.DILEEP P.PILLAI RESPONDENT(S): STATE/COMPLAINANT ----------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. THARAYIL JEWELLERS, REPRESENTED BY ITS PROPRIETORS, BOBAN BENJAMIN, THARAYIL JEWELLERS, POOVANPUZHA, KAVANADU, KOLLAM - 682 035. R1 BY PUBLIC PROSECUTOR SRI.C.S.HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs B. SUDHEENDRA KUMAR, J. ------------------------------------- Crl.A.No.1283 of 2011 -------------------------------------- Dated this the 10th day of February, 2016 JUDGMENT The accused in S.C.No.480 of 2007 on the files of the Additional Sessions Court (Adhoc-II), Kasaragod, filed this appeal challenging the conviction and sentence passed by the court below under Section 55 (a) of the Abkari Act. 2. Heard. 3. The prosecution allegation is that on 29.12.2005 at about 4.30 p.m., the appellant was found in possession of 4 liters of arrack in a Can, in contravention of the provisions of the Abkari Act. 4. PW1 detected the offence. On seeing the police, the appellant ran away from the scene. PW1 seized the contraband as per Ext.P1 mahazar. Samples were also drawn from the contraband and thereafter, the samples and the contemporary records were taken to the police station and thereafter the crime was registered. The investigation was Crl.R.P.No.1283 of 2011 -2- conducted by PW1. After completing the investigation, CW10 (not examined) filed the final report before the court. 5. Before the trial court, PW1 to PW5 were examined and Exts.P1 to P10 were marked for the prosecution. No evidence was adduced on the side of the appellant. 6. PW1 was the Sub Inspector of Police, Badiadka, who detected the offence. He got information that the appellant was conducting business in arrack. Therefore, he went to the house of the appellant on 29.12.2005. At about 4.30 p.m, PW1 and police party reached the house of the appellant. Then the appellant was found standing in the premises of his house with a Can and a glass. On seeing the police party, the appellant ran away from the scene, leaving the can and the glass there. PW1 tested the content inside the Can by smelling and tasting the same and he was convinced that the content inside the Can was illicit arrack. He seized the contraband as per Ext.P1 mahazar. The samples were also drawn from the contraband. The samples were sealed and Crl.R.P.No.1283 of 2011 -3- labelled as per rules. PW2 was the police constable, who accompanied PW1 during the relevant date to the house of the appellant. He had also given evidence corroborating with the evidence of PW1 in all material aspects. PW3 and PW5 were independent witnesses examined by the prosecution to prove the occurrence. However, they did not support the prosecution case, even though they admitted the signature in Ext.P1 mahazar. PW4 was the Village Officer, who prepared Ext.P10 site plan on the request of the police. Ext.P9 is the certificate of Chemical Analysis, which would show that the samples analysed in the laboratory contained 29.58% by volume of ethyl alcohol. 7. I have gone through the evidence of PW1 and PW2 and I am satisfied that their evidence with regard to the seizure of the contraband is reliable, natural and hence acceptable. No circumstance is available before the court to discard the evidence of PW1 and PW2 in this regard. 8. The learned counsel for the appellant has argued Crl.R.P.No.1283 of 2011 -4- that since the appellant was not arrested from the spot, the identity of the appellant could not be established by the prosecution and consequently, the appellant is entitled to acquittal. It is true that the appellant could not be arrested from the spot. PW1 and PW2 stated that the appellant ran away from the scene on seeing the police party. PW1 and PW2 would further state that they were having previous acquaintance with the appellant and hence the appellant could be easily identified. The evidence of PW1 and PW2 would clearly prove that the appellant could not be arrested from the spot as the appellant ran away from the scene on seeing the police party. I am satisfied from the evidence of PW1 and PW2 that their evidence with regard to the identification of the appellant inspires confidence. Ext.P2 FIR also mentions about the name of the appellant. 9. It has been further argued by the learned counsel for the appellant that CW1 and CW11 were not examined by the prosecution and consequently, the arrest of the appellant Crl.R.P.No.1283 of 2011 -5- and the filing of the final report could not be proved. I have considered the above argument of the learned counsel for the appellant carefully. It is true that the evidence of PW1 would show that the appellant was arrested by CW10. Ext.P7 arrest memo and Ext.P8 inspection memo coupled with the evidence of PW1 would show that the appellant was arrested on 19.3.2006 at 7.30 p.m. The arrest of the appellant was not disputed during the course of cross-examination of PW1. That apart, the appellant was not arrested with the contraband. In the said circumstances, the non-examination of CW10, who arrested the appellant, is not at all material in this case. CW11 had only filed the final report before the court. He was the sub inspector of police, competent to file the final report. He did not conduct any part of the investigation. In the said circumstance, the non-examination of CW11 is also not fatal to the prosecution. 10. Having gone through the relevant inputs, I am satisfied that the evidence of PW1 and PW2 with regard to the Crl.R.P.No.1283 of 2011 -6- seizure of the contraband from the possession of the appellant can be safely relied upon. The evidence on record would show that sampling, sealing and labelling were correctly done in accordance with rules. The samples were also produced before the court without any delay. There is no allegation that PW1 or PW2 had any ill-motive against the appellant so as to falsely implicate the appellant in a case like this. Having re- appreciated the entire evidence, I am fully convinced that the prosecution had succeeded in establishing that the appellant committed the offence under Section 8(1) r/w 8(2) of the Abkari Act and consequently, I find no reason to interfere that the verdict of guilty and conviction passed by the trial court. 11. The learned counsel for the appellant has pleaded for leniency in the matter of sentence. The appellant was aged 36 years during the relevant period. Presently, the appellant is aged 46 years. The appellant was in custody from 20.03.2006 to 22.04.2006 in connection with this incident. The contraband Crl.R.P.No.1283 of 2011 -7- involved in this case is arrack, having a quantity of 4 litre. There is no previous conviction against the appellant. There is no allegation that the appellant was involved in any other offence of similar nature, subsequent to the registration of the crime in this case. Considering the facts and circumstances of the case, I am of the view that the sentence awarded by the court below can be modified and reduced to simple imprisonment for one year and a fine of Rs.1,00,000/- (Rupees one lakh only) and in default to simple imprisonment for six months under Section 8 (1) r/w Section 8 (2) of the Abkari Act, to meet the ends of justice and accordingly, I order so. In the result, this appeal stands allowed in part as above. The appellant shall surrender before the court below on 1.04.2016 to suffer the sentence. The appellant is entitled to set off for the period of his detention in connection with this case. Crl.R.P.No.1283 of 2011 -8- Sd/- B. SUDHEENDRA KUMAR JUDGE Scl/11.02.2016 True Copy PA to Judge