IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 CRL.A.No. 2168 of 2007() ------------------------ SC.225/2007 of ADDL. SESSIONS COURT (ADHOC), KOLLAM CP.92/2005 of JUDL.MAGISTRATE OF FIRST CLASS-II, KARUNAGAPPALLY .................... APPELLANT(S): -------------- SAHADEVAN, C.NO.980, CENTRAL PRISON, TRIVANDRUM. BY ADV. NEEMA T.V.[STATE BRIEF] RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. PUBLIC PROSECUTOR SMT. K.L.LAKSHMI RANI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A. No.2168 OF 2007 ---------------------------------------------- Dated, 19th February, 2009 JUDGMENT This is an appeal preferred by the sole accused in S.C.No.225/2007 in the court of the Addl.District and Sessions Judge, (Adhoc) I, Kollam. In this appeal, he is challenging his conviction and sentence under section 55(g) of the Abkari Act. As he is undergoing imprisonment pursuant to the impugned judgment, he preferred this appeal from the jail. 2. The prosecution case is that on 12.12. 2003, at about 8 p.m. the accused was found in possession of 105 litres of wash for distilling illicit arrack at his house bearing No.VII/196, Thazhava panchayat. On the basis of the said allegation, crime No.235/2003 was registered in the excise range, Karunagappally. On completion of investigation, a formal charge was laid before the Judicial First Class Magistrate, Karunagappally, on 28.7.2005. On appearance of the accused, as per order dated 8.3.2007 in C.P.No.92/2005, the case was committed to the Sessions court, Kollam and from where, it was made over to the court of Principal Asst.Sessions Crl.A..2168/07 -:2:- Judge, Kollam, for trial and thereafter the case was transferred to the present trial court. A rormal charge under section 55(g) of the Abkari Act was framed and on hearing the accused as well as the prosecution and the same was read over and explained to the accused and he denied the charge, consequently, the prosecution adduced its evidence consists of the oral testimony of PWs 1 to 8 and the documentary evidence such as Exts.P1 to P11. Three cans of 35 litres capacity was identified as MO1 material objects. When the incriminating circumstances, which emerged during the prosecution evidence, put to the accused, he denied the same. He took a stand of total denial. No evidence either oral or documentary was produced by the defence. The trial court finally found that the prosecution has succeeded in establishing its case against the accused and accordingly, he is convicted under section 55(1) of the Abkari Act. Thereafter, on hearing the question of sentence, the trial court sentenced the accused to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- and the default sentence is fixed as simple imprisonment for 6 months. Set off is allowed. Crl.A..2168/07 -:3:- It is the above conviction and sentence challenged in this appeal. 3. As the appellant is undergoing imprisonment in jail, and the appeal is preferred from the jail, Advocate Smt. Neema T.V. is appointed as State Brief. Thus I have heard the learned counsel as well as the learned Public Prosecutor. 4. PWs 1 and 2 are the main witnesses cited and examined by the prosecution to prove its case. PW`1 is the officer who detected the crime, who was the Preventive Officer of excise range, Karunagappilly. PW2 is also attached to the same excise range who accompanied PW1 at the time of the detection of the crime. According to their evidence, on 12.12.2003 they were on patrol duty and while at Pavumpa Vadakkum muri near Kaliyan chantha, they got reliable information about keeping of wash at the residence of the accused. According to PW1, as there was no time to get permission from the court, he prepared Ext.P4 search memorandum and sent to the court and proceed to the house of the accused who was present at that time. PWs 1 and 2 searched the house after informing the reason of search. On such search on the south western side of the kitchen, 3 black cannases covered Crl.A..2168/07 -:4:- with a sack were found. On examination of the cannases, the same contained brownish liquid having the capacity of 35 litres each. PW1 took a small quantity which was examined and identified as wash kept for distillation of arrack. The accused was arrested at the spot. Each of the cannases contained similar quantity and quality of wash. Each of the cannases were separately examined and hence, sample of 500ml from a cannas was taken in a 750 ml.capacity bottle, sealed the sample bottle, affixed the label with signature of the accused on each such sample bottles. The label contains signature of PW1, the witness etc. The residue of the container was destroyed at the spot and seized the three cannases of 35 litres capacity. All the proceedings adopted by PW1 are categorically and specifically detailed in Ext.P1 seizure mahazar. Through PW1, Ext.P1 seizure mahazar, Ext.P2 arrest memo, Ext.P5 search list were proved. When PW2 was examined, he had also deposed in favour of the prosecution in tune with the deposition of PW1. Both PWs 1 and 2 identified MO1 series. PW3 is an independent witness. He did not support the prosecution and he was declared Crl.A..2168/07 -:5:- as hostile witness. PW5 is the Excise Inspector, Karunagappally who had deposed that PW1 produced the accused, and the materials on 12.12.2003 in the night and PW5 registered crime No.235/2003 on the basis of Ext.P3 seizure mahazar. Ext.P8 is the occurrence report and Ext.P9 is the remand report ; Ext.P10 is the custody memo and Ext.P11 property list which are proved through PW5. PW5 had testified that the accused was produced before the court on 13.12.2003 with Ext.P9 remand note and the materials also produced before the court on 17.12.2003 with Ext.P11 property list. PW4 is the Excise Inspector, Karunagappally who undertook the charge of investigation from PW5 on 15.3.2005. He had obtained Ext.P6 certificate issued from Thazhava Grama Panchayat showing the ownership of the house at the place of occurrence. As per Ext.P6, the house from where the contraband article seized was owned by Sahadevan. Ext.P7 is the chemical examination report proved through PW4. According to the chemical analysis report, 10.04 % by volume of ethyl alcohol was detected in the sample. Thus, on the basis of the above materials and evidence, the trial court found that the Crl.A..2168/07 -:6:- accused has committed the offence punishable under section 55 (1) of the Abkari Act. 5. During the trial, though PWs 1, 2, 4 and 5 were cross- examined extensively, nothing brought to discredit their version. It is argued that the prosecution has not examined any independent witness, and no evidence was adduced from independent source so as to corroborate the evidence of official witnesses. Going by the evidence of official witnesses, it can be seen that their evidences are free from any infirmities or discrepancies. The accused was present at the time of the alleged detection and seizure of the contraband articles and the place of occurrences is the house owned by the accused. Thus, on appreciation of the evidence on record, I find no illegality or irregularity in the judgment of the trial court and accordingly, the finding of the court below is approved and the conviction ordered by the court is confirmed. 6. Regarding the sentence, it appears to me that though the large quantity of contraband article which is an essential ingredient for distillation of illicit arrack, the trial court has awarded Crl.A..2168/07 -:7:- only two years imprisonment and the minimum amount of fine. Therefore, no interference is called for. 7. In the result, there is no merit in the appeal and the same is dismissed. It is brought to my notice that the accused was arrested on 12.12.2003 and he was under custody from 12.12.2003 to 11.5.2004 and from 17.11.2006 till 8.10.2007. It appears to me that he had also undergone the substantial sentence of imprisonment and the default sentence. If that be so, it is for the jail authorities to look into the matter and to release the petitioner, if he is not already released and not wanted in any other case. V.K.MOHANAN, JUDGE kvm/- Crl.A..2168/07 -:8:- V.K.MOHANAN, J. CRL.A. No.2168 OF 2007 Judgment Dated: 19.2.2009