IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 CRL.A.No. 1126 of 2003() --------------------------------------- SC.243/2000 of ADDL.SESSIONS COURT (ADHOC - I), KASARAGOD .................... APPELLANT(S): ACCUSED --------------------- S.SHAJI S/O. VILASINI, AJANURKADAPPURAM. BY ADVS. MR.M.THAMBAN SMT.T.SUDHAMANI RESPONDENT(S): COMPLAINANT AND STATE ------------------------------- 1. THE STATION HOUSE OFFICER, HOSDURG POLICE STATION. 2. THE 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 11/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1126 OF 2003 = = = = = = = = = = = = = = = Dated this the 11th 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.243/00 of the Addl. Sessions Judge, Adhoc-I, Kasaragod. It is the case of the prosecution that on 17.5.99 at 3.00 p.m. the accused while proceeding from Kanhagad railway station was found to be in possession of 60 bottles of whisky containing 180 ml. in each bottle. He was apprehended and a case was registered u/s 55(a) of the Abkari Act. The defence is of a total denial and the court after considering the materials had found him guilty and sentenced him to undergo imprisonment for three years u/s 55(a) of the Abkari Act and to pay a fine of Rs.1 lakh and in default to undergo rigorous imprisonment for a period of six months. It is against that decision the appeal is preferred. The points that arise for determination in the appeal are; (1) Whether there are sufficient materials to convict the accused u/s 55 (a) of the Abkari Act? Crl. Appeal NO. 1126 OF 2003 -:2:- (2) Is there anything to interfere with the decision and if so what is the quantum? 2. Heard the learned counsel for the appellant as well as the prosecutor. The total whisky which was alleged to be found in possession by the accused comes to 10.8 liters. It is deposed by PW2 to the effect that he along with the Sub Inspector and other constable were doing law and order duty and when they reached the railway station near the place where the vehicles were parked the accused was found with an orange colour leather bag. On seeing the police he was in a frightened mood and therefore the Sub Inspector of police stopped the jeep and searched the bag and found 60 bottles of liquor. It was boss whisky. It is also deposed by him that two bottles were taken as samples and it was labelled and sealed. Remaining 58 bottles were also packed and it is marked as MO1 series. In the cross-examination also he had stated about the incident and nothing has been brought out to discredit his evidence. PW3 had admitted that he is a witness to the scene mahazar and thus the existence of the same is proved. PW4 is the Sub Inspector of police who had detected Crl. Appeal NO. 1126 OF 2003 -:3:- the case. He had deposed how they proceeded, under what circumstances they met the accused and how the search was conducted and seizure was done. He had also stated about the taking of the sample and sealing it properly and also regarding forwarding it to the court for sending it for the chemical examiner's report. He has been cross-examined and he had denied the suggestion that it is a cooked up case. He had stated that it was he who had tasted the liquid. It is also deposed by him that the articles were sent to the Court on 22.5.99 after preparing the forwarding note on 21.5.99. The chemical examiner's report in this case is marked as Ext.P6 It shows that the seal on each bottle was in tact and found tallied with the sample seal provided. The chemical examination revealed that it contained 40.84% by volume of ethyl alcohol. I had also perused the seizure mahazar, Ext.P2 which clearly shows that the samples were taken and sealed in the presence of the witnesses. It is submitted that the independent witnesses has not been examined in this case and therefore the matter has to be viewed with suspicion. Under the proviso to S.36 of the Abkari Act, presence of independent Crl. Appeal NO. 1126 OF 2003 -:4:- witnesses are necessary. So far as this case is concerned there were independent witnesses and only thing is that they had not been examined. It is a well known fact that these independent witnesses are rarely in the habit of supporting the prosecution and under such circumstances it has to be considered whether it has caused any prejudice to the accused. A Division Bench of this court has even gone to the extend of holding that even the absence of independent witnesses will not vitiate the trial unless real prejudice has been caused to the accused. Here an analysis of the evidence would reveal that the accused was found in suspicious circumstances with a leather bag which contained 60 bottles of Boss whisky and proper sample has been taken and sealed and therefore there is nothing that had caused prejudice to the accused. So the said contention cannot be accepted. Therefore in the light of these materials I do not want to hold that the Court below has gone wrong in finding the accused guilt u/s 55(a) of the Act. Therefore the conviction is confirmed. Crl. Appeal NO. 1126 OF 2003 -:5:- 3. Now coming to the question of sentence. The learned counsel would submit that the accused is in poor circumstances and he requires sympathy and he is not a habitual offender and therefore some leniency should be shown. After hearing the persuasive argument of the learned counsel I am inclined to show leniency by reducing the sentence to one year and the default sentence to that of three months. The rigorous imprisonment also is altered into that of simple imprisonment. In the result this Crl.Appeal is disposed of as follows. The finding of guilt u/s 55(a) of the Abkari Act is confirmed and the sentence is modified and the accused is sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1 lakh and on default of which he is sentenced to undergo simple imprisonment for another three months. The lower court shall execute the sentence. He is entitled to set off permissible under Sec. 428 Cr.P.C. M.N. KRISHNAN, JUDGE. ul/-