IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN THURSDAY, THE 10TH DAY OF NOVEMBER 2011/19TH KARTHIKA 1933 CRA.No. 1275 of 2003 ------------------------ SC.204/2001 of ADDL. DISTRICT COURT(ADHOC 2), THRISSUR ACCUSED/APPELLANT ------------------------------ 1. KUTTAN, S/O. VELAYUDHAN, THANNAMPARAMBIL HOUSE, KORATTY , KIZHAKKUMURI VILLAGE, NALUKETTU, MUKUNDAPURAM TALUK. 2. SREEDHYARAN, S/O.KUTTAN, VATTALAI HOUSE, KORATTY, KIZHAKKUMURI VILLAGE, NALUKETTU MUKUNDAPURAM TALUK. BY ADVS.SRI.P.VIJAYA BHANU SMT.P.MAYA COMPLAINANT/RESPONDENT ------------------------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.SURESH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-11-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: smm P.S.GOPINATHAN. J --------------------------------- Crl.A No.1275 OF 2003 --------------------------------- Dated this the 10 th day of November , 2011 J U D G M E N T Additional Sessions Judge, Thrissur in S.C.No.204/2001 on his file found the appellants guilty for offence under Section 55(g) of the Abkari Act. Consequently, they were convicted and sentenced to rigorous imprisonment for one year each and a fine of Rs.1.lakh each with a default sentence of rigorous imprisonment for 6 months. 2.Assailing the above conviction and sentence this appeal is filed. Today when the appeal came up for hearing, the learned counsel for the appellant submitted that the first respondent died on 11-9-2007. Copy of the death certificate is produced. The submission of the learned counsel is recorded. 3. I have heard Adv. Sri.V.C.Sharath , the learned counsel appearing for the appellants and the learned Government Pleader. Perused the judgment impugned as Crl.A No.1275 OF 2003 2 well as the evidence on record. 4. The prosecution case is that at about7.a.m on 8-7- 2000 while PW1, the Excise Inspector, Chalakudy Excise Range, moving on patrol duty along with PW4,the preventive officer, the appellants were found jointly carrying a can which was marked as MO.1 .Seeing PW1 and party, apellants got puzzled. Being got suspicious, the appellants were intercepted and the contents in MO1 was examined by smell and taste. It was convinced to PW1 and PW4 that MO.1 which has a capacity of 50 litres contained wash prepared for illicit distillaration . Appellants were arrested and MO.1 along with the wash was seized. 180 ml was taken in two sample bottles for chemical examination. Ext. P3 , the seizure mahazar was prepared. Returning to the office, a case was registered , for which Ext. P6 occurrence report was prepared. Exts.P4 and P5 are the arrest notices. Exts.P1 and P2 are the arrest memos. The appellants were produced before the court along with Ext. P8 remand report and Ext. P7 Crl.A No.1275 OF 2003 3 property list. The samples were sent for chemical examination. After chemical examination, by Ext.P9, the Chemical Examiner reported that the samples contained 3.31% and 5.14% of ethyl alcohol by volume. After completing the investigation, charge sheet was filed alleging the above offence. 5. The appellants denied the charge. Therefore, they were sent for trial. On the side of the prosecution PWs1 to 4 were examined. Exts.P1 to P10 and MO.1 were marked. After closing the evidence for prosecution, the appellants were questioned under 313(1) (b)of the Code of Criminal Procedure .They took a defence of total denial and stated that while they were sleeping in their respective houses they were taken custody and brought to the Excise Office. Despite the opportunity given, the appellants did not adduce any defence evidence. The learned Additional Sessions Judge, on appraisal of the evidence arrived at a conclusion of guilt. Consequently, the appellants were convicted and sentenced as above. Crl.A No.1275 OF 2003 4 6. Going by the evidence of Pws1 and 4, I find that Pws 1 and 4 are harmonious that at about 6.50 a.m on 8- 7-2000, while they were on patrol duty, the appellants were found carrying MO.1. Seeing PW1 and party, the appellants got puzzled. Being got suspicious, they examined the contents in MO.1 and found that it was full of wash prepared for illicit distillaration. Therefore, the appellants were arrested and the contraband was seized for which Exts.P1 and P2 arrest memos, Ext.P3 seizure mahazar and Ext.P4 and P5 arrest notices were prepared. The evidence of PW1 and PW4 are corroborated by Exts.P1 to P5. Since PW2 and PW3 had turned hostile. I had a careful and critical scrutiny of the evidence PW1 and PW4 . Though they were subjected to cross examination , no material was disclosed to disbelieve them. Nothing is revealed out to show that PW1 and PW4 were anyway motivated against the appellants, or that the appellants were falsely implicated. In the above circumstance, I find that the Learned Additional Sessions Crl.A No.1275 OF 2003 5 Judge, had correctly appreciated the evidence of PWs1 and 4 regarding seizure of MO.1 with its contents. The evidence of PW1 ,that he tested the liquid in MO.1 by smell and taste and convinced that it was wash prepared for illicit distillaration of arrack could not be shaken in cross examination. Their evidence on that aspect is further corroborated by Ext. P9, the chemical analysis report wherein it is certified that the samples contained 3.31% and 5.14% of ethyl alcohol by volume. There is no reason to reject Ext.P5. Therefore, it is just and appropriate for the trial court to conclude that the liquid that was contained in MO.1 is wash prepared for illicit distillaration. 7. The learned counsel for the appellants submitted that at the time of taking evidence, the label over MO.1 was found missing. Therefore, according to the learned counsel, no relevancy can be given to the testimony of PW1 regarding the identity of MO.1. On careful scrutiny, I find no reason to disbelieve their evidence for the Crl.A No.1275 OF 2003 6 reason that label was missing from MO.1 at the time of recording the evidence. Missing of label wouldn't affect the case of the prosecution case. The impugned judgment would show that learned Additional Sessions Judge, had considered the contention and rejected the defence and noted that MO.1 itself would show that there was a mark where the label was affixed and it might have been missed during the course of time. Therefore, I find no reason to interfere with the conviction under challenge on that reason. Conviction under challenge is based on cogent evidence. 8. Taking note that there is no subsequent report of any recurrence and that the second appellant is now aged 56 years, I find that simple imprisonment for a period of 6 months with minimum fine would meet the ends of justice. 9. In the result, the appeal as regards the first appellant would stand dismissed as abated. The appeal as regards the second appellant is allowed in part. While, Crl.A No.1275 OF 2003 7 confirming the conviction, substantive sentence against the 2nd appellant is reduced to simple imprisonment for 6 months. Fine imposed is sustained with modification that the default sentence shall be simple imprisonment. Trial court shall see execution and report compliance. P.S.GOPINATHAN JUDGE MM Crl.A No.1275 OF 2003 8