IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 19TH DECEMBER 2011 / 28TH AGRAHAYANA 1933 CRL.A.No. 1116 of 2010(D) ------------------------- SC.546/2008 of ADDL. SESSIONS COURT(ADHOC)III, PATHANAMTHITTA .................... APPELLANT(S): -------------- BHADRAN, C.NO.4736, CENTRAL PRISON, THIRUVANANTHAPURAM-12 BY ADV. ADV.ARUNKUMAR P [STATE BRIEF] RESPONDENT: --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. LOWSY A THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No.1116 of 2010 ---------------------------------------- Dated the 19th day of December, 2011 JUDGMENT In this jail appeal, the challenge is against the judgment dated 11.2.2010 in S.C.No.546/2008 of the court of Additional District and Sessions Judge,(Ad hoc), Fast Track Court-III, Pathanamthitta by which, the appellant who is the sole accused therein, is convicted and sentenced for the offence punishable under section 8(1) and (2). 2. The allegation against the accused is that, in contravention of the provisions of the Abkari Act, the accused was found in possession of 22 litres of arrack in a black jerry can through the forest and coming up to the road going to Maniyar dam from the Maniyar police camp on 28.7.2006 at 12.25 p.m and thereby committed the above offence. On the basis of the above allegation, crime No.29/2006 was registered in the Ranny Excise Range which culminated in the report and eventually, instituted S.C.No.546/08. During the trial of the above case, a formal charge was framed against the accused for the offence punishable under section 8(1) and (2) of the Abkari Act which when read over and explained to the accused, CRA 1116/10 -2- he denied the same and pleaded not guilty. Consequently, the prosecution adduced its evidence consists of deposition of PWs 1 to 5 and documents Exts.P1 to P7. MO1 can was also identified and marked. When the accused was examined under section 313(1)(b) Cr P.C., he denied the incriminating facts and circumstances and the evidence on record and said that he was falsely implicated. No evidence is adduced from the side of the defence. Finally, the trial court has found that the accused has committed the offence for which he is charged. Accordingly, he is convicted for the offence under section 8(2) of the Abkari Act and he is sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.1,00,000/-, and in default, of payment of fine, he is directed to undergo simple imprisonment for a further period of 6 months. Set off is allowed for a period of 183 days in terms of Section 428 CrP.C. It is the above finding and order of conviction and sentence challenged in this appeal. 3. As I indicated earlier, appeal preferred by the appellant from jail where he is undergoing imprisonment in pursuance of the impugned judgment, and on receiving such appeal as CRA 1116/10 -3- ordered by this court, the Registry has appointed Advocate Sri. Arun kumar P., from the panel of State Brief to defend the appeal. Thus I have heard Sri.Arun Kumar P, the learned Counsel appearing for the appellant and the learned Public Prosecutor. 4. As I indicated earlier, in order to substantiate the prosecution allegation, the prosecution mainly depends upon the evidence of PWs 1 and 2 to prove the incident. PW1 is the then Excise Inspector attached to Ranny Excise range who detected the crime. PW2 is the Guard of the same Excise Range who accompanied PW1 at the time of the detection of the crime. When PW1 was examined, he had deposed that , while he was on patrol duty on 28.7.2006 and when they reached at Maniyar in the morning of 28.7.2006, he received information about the sale of arrack by one Bhadran near the Maniyar dam and according to PW1, when they reached at the spot, he had seen one person coming up to the road going to the Maniyar dam from the police camp at Maniyar with a black jerry can through the forest by the side of it. According to PW1, on seeing the excise party , that person got perplexed and CRA 1116/10 -4- attempted to turn back and the party intercepted him and on examination of the liquid found in the can in the presence of witnesses, by smelling and tasting, it was convinced that the liquid was arrack. According to PW1, he had drawn a sample of 200 ml of arrack in a 375 ml bottle from the can and the sample as well as the can were sealed in the presence of witnesses and taken into custody after affixing label putting the signature of PW1 and other witnesses. When PW1 was examined, the prosecution has got marked Ext.P1 arrest memo, Ext.P1(a) arrest intimation, Ext.P2 mahazar, Ext.P3 crime and occurrence report, Ext.P4 remand application and Ext.P5 property list. When PW2 was examined, he had also deposed in par with the deposition of PW1. PW2 has also identified the material objects marked in the case. PW3, an attestor to Ext.P2 mahazar and also an independent witness, deposed in terms of the prosecution allegation, fully supporting the evidence of PWs 1 and 2. PW4 is another excise inspector who conducted the investigation. When he was examined, Ext.P6 chemical analysis report was marked. PW5, is another witness examined by the prosecution, who is the thondi clerk of the CRA 1116/10 -5- committal court. Ext.P7 extract of thondi register of the court of the Judicial First Class Magistrate, Ranny marked through PW5. Ext.P6 chemical analysis report shows that the sample contained 30.59 per cent by volume of ethyl alcohol. It is the above materials and evidence form basis for the findings of the learned Judge of the rial court and convicting the accused. 5. The learned counsel for the appellant vehemently submitted that the prosecution has miserably failed to prove its case beyond reasonable doubt and in support of the above contention, the learned counsel has pointed out that no attempt was made or legal steps were taken by the investigating officers, to get examined the contraband article allegedly seized from the possession of the accused and though Ext.P6 report is available on record, the same has no legal sanctity since no sample was forwarded for chemical analysis at the instance of the prosecution agency. According to the learned Counsel, the prosecution has not produced the forwarding note and in the absence of such vital document, no evidentiary value can be attached to Ext.P6. It is also the submission of the learned counsel that the trial court has miserably failed to CRA 1116/10 -6- consider the merits of defence set up by the appellant and therefore the findings of the court below and the consequent conviction and sentence are liable to be set side. 6. On the other hand , the learned Public Prosecutor submitted that, unlike usual abkari cases, in the present case, an independent witness, who was examined as PW3 who is an attestor to Ext.P2 mahazar, has categorically deposed in favour of the prosecution and against the appellant/accused, and therefore, the evidence of PWs 1 and 2 whose evidence is otherwise in tact, corroborated by the evidence of official witness. On the basis of evidence of PWs 1 and 2 and the documentary evidence on record, the learned Public Prosecutor submitted that the prosecution has proved its case beyond reasonable doubt and therefore no illegality or irregularity has been committed by the trial court in accepting the case of the prosecution as such and convicting and sentencing the appellant. 7. I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor. In the light of the rival contentions advanced by CRA 1116/10 -7- them and the evidence and materials on record, the question to be considered is whether the trial court is justified in its finding and sentencing the appellant/accused for the offence under section 8(2) of the Abkari Act and whether such finding and conviction is supported by cogent evidence and materials. 8. I have already referred to the evidence of the prosecution with respect to the detection of the crime , seizure of the contraband article and arrest of the accused. The evidence of PWs 1 and 2 in this respect remains in tact and nothing brought on record to discredit their version. The deposition of PWs 1 and 2 is further approved by the contemporary documents Ext.P2 mahazar and Ext.P1 and P1(a) arrest memo and arrest intimation. On the basis of the evidence of PW5 and Ext.P1 document, no doubt, the contraband article and accused were produced before the court on the next day of the seizure and arrest. So the evidence of prosecution case regarding the seizure and arrest are fully supported by the documentary evidence. Besides the above, there is the evidence of PW3, who is the independent witness and attestor to Ex.P2 mahazar. When PW3 was examined, he had CRA 1116/10 -8- categorically deposed before the court below supporting the prosecution allegation as such. As rightly pointed out by the learned Judge of the trial court, there is no effective cross examination of PW3 and nothing brought on record to disbelieve his version or doubt the prosecution allegation. Thus it can be seen that the prosecution has adduced independent evidence to prove its allegation against the appellant. It is true, the prosecution has not produced the copy of the forwarding note requesting the court to forward the sample for chemical analysis. When PW5 was examined, it is deposed that copy of the forwarding note is available in the committal court. The trial court has also found that in Ex.P4 remand application, there was a reference to the forwarding note. In the light of the above facts, especially, when Ext.P6 report is prepared on the basis of the sample received from the court, on the basis of he materials referred thereto, I find no reason to reject the case of the prosecution. 9. In the light of the above facts and circumstances and the foregone discussion, I am of the view that the prosecution has succeeded in proving its case against the appellant beyond CRA 1116/10 -9- reasonable doubt and accordingly, I confirm the conviction recorded by the trial court. 10. The learned counsel for the appellant submitted that the sentence imposed against the appellant is exorbitant and therefore a lenient view may be taken in the matter of sentence. The learned Public Prosecutor submitted that huge quantity is involved and, in spite of the said fact, the court has awarded only two years rigorous imprisonment and the minimum fine of Rs.1,00,000/- and therefore, no interference is warranted with respect to the sentence. 11. I have considered the arguments of the learned counsel for the appellant as well as the learned Public Prosecutor with respect to the sentence. The appellant was only at the age of 41years on the date of the alleged incident and the prosecution has no case that he had involved in any other similar offence. In the light of the above mitigating circumstances, according to me, while confirming the sentence of fine and the default sentence, the substantial sentence can be reduced from 24 months (2 years) to 20 months. Accordingly, in modification of the substantial sentence, the CRA 1116/10 -10- appellant is sentenced to undergo rigorous imprisonment for a total period of 20 months and the sentence to pay fine and the default sentence ordered by the trial court is confirmed. 12. In the result, this appeal is dismissed confirming the conviction imposed on the appellant for the offence under section 8(2) of the Abkari Act, but subject to the modification of the sentence to the extent indicated above and set off is allowed. 13. Though this court dismissed the appeal confirming the conviction, imposed against the appellant as per the impugned judgment, the sentence is modified and reduced into 20 months rigorous imprisonment, instead of 24 months (2 years) and set off is allowed under section 428 Cr.P.C., it appears that the appellant is entitled to get released from the jail forthwith, as he had already completed 22 months of rigorous imprisonment towards the substantive sentence, other than the default sentence he had already undergone, if he is not required in any other case. The registry is directed to forward the gist of this judgment to the Superintendent, Central Prison, CRA 1116/10 -11- Thiruvananthapuram forthwith for further action in the matter. V.K.MOHANAN, JUDGE. Kvm/- CRA 1116/10 -12- V.K. MOHANAN, J. CRL.A.NO.1116/2010 JUDGMENT 19.12.2011