IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 CRL.A.No. 1071 of 2003() --------------------------------- SC. NO.430/2003 OF ADDL. DISTRICT & SESSIONS COURT, (ADHOC-I) KOZHIKODE. ........ APPELLANT(S): ACCUSED --------------------- BHASKARAN, AGED 39 YEARS, S/O. CHEKKUTTY, PINDAMNEEKI MEETHAL HOUSE, KOZHIKODE TALUK. BY ADV. MR.SUNNY MATHEW RESPONDENT(S): COMPLAINANT -------------------------- THE EXCISE INSPECTOR, BALUSSERY EXCISE RANGE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/07/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1071 OF 2003 = = = = = = = = = = = = = = = Dated this the 29th day of July, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed by the Addl. Sessions Judge, Fast Track Court, Adhoc-I, Kozhikode in S.C.439/99. The accused was charge sheeted for offence u/s 55(a) of the Abkari Act and was convicted and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- and in default to undergo further imprisonment for a period of nine months. It is against that decision the accused has come up in appeal. 2. The points that arise for determination are: (1)Whether the materials are sufficient to convict the accused u/s 55(a) of the Abkari Act? (2) In case of guilt, is the sentence excessive? Points 1 and 2: 3. Heard the learned counsel for the appellant as well as the Prosecutor. The learned counsel for the appellant Crl. Appeal NO. 1071 OF 2003 -:2:- would contend that the evidence is lacking and that independent witnesses are turned hostile and therefore a conviction cannot be sustained in this case. It is the case of the prosecution that on 30.10.97 at about 6.30 p.m. while the excise officials were on patrol duty and when they reached near the Krishibhavan office they found the accused carrying a Can and got perplexed on seeing them. He was intercepted, examined and was found that he was carrying liquor in the Can of two litres which was found to be illicit arrack by taste and smell. Thereafter 180 ml of sample was taken and it was sealed and thereafter the remaining liquid was also sealed and seizure mahazar was prepared. He was produced before Court on the very same day and material objects were produced on the next day. In support of the case of the prosecution PWs.1 and 2 had given evidence. PW1 was the Excise Inspector who conducted the detection. He had deposed before Court that they found the accused near the Krishibhavan office with plastic can which contained the illicit arrack. According to him sample was taken and it was sealed. Later accused was arrested and produced before Court. Though he had been cross examined at length nothing has been brought out to Crl. Appeal NO. 1071 OF 2003 -:3:- discredit the evidence. He had clearly spoken about the place of arrest, where the accused was apprehended, how sample was taken and how it was sealed etc. 4. PW2 is another officer who had accompanied PW1. He had also deposed in line with PW1 and nothing has been brought out in his cross examination as well. PW3 and PW4 are the two independent witnesses. As usual they have turned hostile. They had admitted their signature in the seizure mahazar but not spoken anything about the recovery. PW5 is the person who had completed the investigation and laid the charge. So the evidence of PWs.1 and 2 makes it clear that the accused was apprehended and was found to be in possession of two liters of arrack. The material objects were produced on the very next day, i.e. on 1.11.97 and it has been sent for chemical analysis. The Chemical examiner's report, Ext.P7 would further reveal that the seal on the bottle was in tact and found tallied with the sample seal provided. It is also noted that the sample of liquid contained 28.2% by volume of ethyl alcohol. Therefore the possession of illicit arrack with the accused stands proved beyond doubt. The learned counsel would contend that since the independent witnesses had Crl. Appeal NO. 1071 OF 2003 -:4:- turned hostile the Court should not accept the evidence of PWs.1 and 2. This matter came up for consideration before this Court in the decision reported in Sivaraman v. State of Kerala (1981 KLT S.N. Case No.17 page 9). In that decision the Court observed that independent witnesses are turning hostile for the reasons best known to them. Then the Court proceeded and held that the evidence of official witnesses can be accepted when they stand to meticulous scrutiny. On a meticulous scrutiny I find the evidence of PWs.1 and 2 are intrinsically reliable and inherently probable. There is no ground to disbelieve them. Therefore I find the Court below has not erred in finding the accused guilty u/s 55 (a) of the Act. 5. Now turning to the question of sentence. The Court below has convicted the accused and sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- and in default to undergo imprisonment for nine more months. It is clear that no other criminal antecedents are there and it is also stated by him that he has got his old mother, wife and two daughters to be looked after by him and if he is sent to jail it may cause him Crl. Appeal NO. 1071 OF 2003 -:5:- difficulty. Learned counsel for the appellant also strongly persuaded me to take a lenient view. Taking into consideration the quantum of the liquor as well as the factum of the inability of the members of the family for survival without the help of the accused I am inclined to reduce the sentence to that of three months rigorous imprisonment and the default sentence to a period of one month. 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 rigorous imprisonment for a period of three months and to pay a fine of Rs.1,00,000/- and in default to undergo simple imprisonment of one month. 4) The accused is entitled to entitled to set off as contemplated under S.428 Cr.P.C. M.N. KRISHNAN, JUDGE. ul/-