IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 CRL.A.No. 1182 of 2003() ---------------------------------- SC.94/2002 of ADDL. SESSIONS COURT, FAST TRACK-I, PALAKKAD .................... APPELLANT/ACCUSED -------------------------------- SURESH, S/O.SEKHARAN, MANAPPULLY VEEDU, PAYYAMKODE, KAYARADY, CHITTUR TALUK, PALAKKAD. BY ADV. MR.P.VIJAYA BHANU MR.TONY MATHEW RESPONDENT/COMPLAINANT ------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1182 OF 2003 = = = = = = = = = = = = = = = Dated this the 23rd day of June, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed in S.C.94/02 of the Addl. District and Sessions Judge, Fast Track court-I, Palakkad. The accused was found guilty of the offence u/s 55(a) of the Abkari Act and was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/- and in default to undergo 6 months simple imprisonment more. It is against that decision the accused has come up in appeal. 2. The points that arise for determination are; (1) Whether the Court below was right in finding the accused guilty u/s 55(a) of the Abkari Act with the materials available on record? (2) Is there anything to interfere? and (3) In case of guilt, what is the proper quantum of punishment? Crl. Appeal NO. 1182 OF 2003 -:2:- Points 1 and 2: 3. Heard the learned counsel for the appellant as well as the Public Prosecutor. It is the case of the prosecution that the accused was found in possession of 6¼ liters of arrack unauthorizedly in different bottles which was kept for the purpose of sale in his residential house bearing door No.XI/262 at Payyamkode. The police party searched the house, seized the contraband, arrested the accused seized the liquor, took out the sample from the same and send it for chemical examination. On examination, it was found to contain percentage of ethyl alcohol and thereafter on the basis of the same, the Court below found the accused guilty. 4. The learned counsel for the appellant strongly contends before me there are no materials produced before the court to show that the contraband was seized from the house of the accused or from his possession. Therefore it is submitted by the learned counsel that the accused is liable to be acquitted on that ground alone. The evidence in this matter consists of oral testimonies of PWs.1 to 8. The Crl. Appeal NO. 1182 OF 2003 -:3:- evidence of PW1 does not lend any support to the prosecution and therefore he had been declared as hostile in the case. PW2 is another independent witness who is similarly a hostile witness to the prosecution. He had at least deposed before court that he had seen the police people conducting the search on the house of the accused and according to him he only saw the police people with the bottles which was described by them to him as arrack. He had denied the suggestion that the accused was in the house at the time of the alleged search or seizure. PW3 is only a witness to the mahazar and he has also turned hostile to the prosecution. PW4 is the detecting officer. He is the Circle Inspector of Police and according to him on 31.3.99 at about 6 p.m. he along with his party on getting reliable information that the accused in his house was keeping illicit arrack, prepared the search memo and directed his subordinates to send it to the court and proceeded to the place. On their reaching the house of the accused they were able to find from the middle room of the house, plastic bottles containing contraband liquor which on smell and taste, was Crl. Appeal NO. 1182 OF 2003 -:4:- found to be alcohol. Thereafter 750 ml samples were taken in two bottles and the bottles were sealed and taken possession of. He had identified MO1 and MO2. In the cross examination it has been challenged whether he had labelled all the bottles and further it is also suggested that he had not seen anything to see the ownership of the house of the accused. PW5 is the head constable who had prepared scene mahazar in the case as part of the investigation. PW6 is the Sub Inspector of police who had send the request for sending the sample to the Chemical Examination Laboratory. PW7 is the Sub Inspector of police who had succeeded PW6 verified the document and filed the charge before court. PW8 is the Sub Inspector of Police. On 31.3.99 he had accompanied the Circle Inspector of Police at the time of detection of the offence. He has identified the accused. He had deposed that both had gone to the house of the accused and they found from his house six bottles of arrack which had been seized and sample taken by the Circle Inspector of police. He also speaks about the entry in the General Diary. Though he had been cross examined Crl. Appeal NO. 1182 OF 2003 -:5:- nothing is brought to discredit his evidence. So the material witnesses namely PWs. 4 and 8 have very clearly spoken that they had searched the house of the accused and they had found the illicit arrack in the possession of the accused by detecting it from the middle portion of the house. Evidence of PW2 would indicate that the police authorities had searched the house of the accused and had shown him the bottle of arrack. It is true he denied the presence of the accused in the house. When the evidence of PWs.4 and 8 are consistent as to the factum of the availability of the accused, the evidence of PW2 throws further light that it was from the house of the accused that these bottles were taken possession of. It has to be held that the prosecution has proved all the links. It has to be remembered that the police officials had clearly spoken about the number of the house which they searched and the presence of the accused in that premises. So everything is in tact and I do not have anything to disbelieve it as well. Time and again Courts have held that methodology of analyzing the evidence of official witnesses is to scrutinize it meticulously to Crl. Appeal NO. 1182 OF 2003 -:6:- find out the truth in it. From an analysis, I hold that the evidence of PWs.4 and 8 are believable especially in the backdrop of PW2's evidence. Therefore I find no ground to interfere with the finding of the Court below u/s 55(a) of the Act. 5. Now turning to the question of sentence. It is true that selling illicit arrack is a social menace. The accused is aged 33 years and he has got a family to be looked after and the learned counsel for the appellant persuasively prays to show leniency with respect to the sentence. Taking into consideration the attending circumstances and other facts I am inclined to reduce the sentence to one year and retain the payment of fine of Rs.1,00,000/- but reduce the default sentence from six months to 3 months. In the result the Crl.Appeal is disposed as follows: (1) Finding of guilt u/s 55(a) of the Abkari Act is confirmed. (2) The sentence is modified and the accused is sentenced to undergo simple imprisonment for a period of one Crl. Appeal NO. 1182 OF 2003 -:7:- year and to pay a fine of Rs.1,00,000/- on default of which he is directed to undergo a further imprisonment of three months. He is also entitled to the period of set off as contemplated under S.428 Cr.P.C. Lower Court shall execute the sentence. M.N. KRISHNAN, JUDGE. ul/-