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. 511 of 2009(D) ------------------------ SC.577/2006 of ADDL. SESSIONS COURT (ADHOC-2), THRISSUR CP.108/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... APPELLANT(S): PETITIONER ----------------------------- KRISHNAN, S/O.VELAYUDHAN, C.NO.6718. CENTRAL JAIL, KANNUR BY ADV.SUNIL J.[STATE BRIEF] RESPONDENT(S): RESPONDENT ------------------------- STATE OF KERALA 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. 511 OF 2009 = = = = = = = = = = = = = = = 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.577/06 of the Addl. Sessions Judge (Adhoc-), Fast Track Court-II, Thrissur. It is the case of the prosecution that on 9.2.2005 at about 4.30 p.m. the accused was found in possession of 4 liters of arrack from the place in front of the house of Thandassery Suresh. He was arrested and the liquor in his possession was seized which was found to be illicit arrack. The Court below convicted him for the offence u/s 8 (1) and (2) of the Abkari Act and sentenced him to undergo simple imprisonment for a period of three years and to pay a fine of Rs.1,00,000/- in default to undergo simple imprisonment for a period of one year more. It is against that decision the appellant who is in custody had sent an appeal through jail. Advocate Sri.Sunil has been appointed as the State Brief and the learned counsel for the appellant as well as the Public Prosecutor had been heard in this matter. Crl. Appeal NO. 511 OF 2009 -:2:- 2. The points that arise for determination are; (1)Whether there is sufficient materials to convict the accused u/s 8(1) and (2) of the Abkari Act? (2) If so, what is the proper quantum of punishment? Points 1 and 2: 3. It is the case of the prosecution that on 9.2.2005 the accused was found to be in possession of 4 liters of arrack and a search was conducted and he was arrested. PW1 is the Excise Range Inspector. He had deposed before Court that when they reached Anandapuram on patrol duty they got the information that the accused was selling arrack. Thereafter they proceeded to that place and when they reached in front of the house of one Suresh they found the accused with a bag on the back of an electric post. He was restrained and examined. The bag contained a plastic can of 5 liter capacity with a glass. They found about 4 liters of arrack and they came to know so by testing and smelling. Thereafter the accused was arrested and two samples were taken and it was sealed and labeled. He had identified the Can as MO1 and Crl. Appeal NO. 511 OF 2009 -:3:- glass as MO2. He had also stated about the property list and forwarding note. He has been cross-examined and he has deposed that the accused was identified under day light and thereafter by other persons available who had seen the incident. He had also spoken about the seal used for the purpose. 4. PW2 is a person who had accompanied PW1 and he had also spoken in the very same line as PW1 and had also proved about the factum of her arrest, seizure, sampling, labelling etc. PW3 is an independent witness to the mahazar and he had clearly stated that he had seen 4 liters of arrack being taken possession from the accused. PW4 is also a witness to Exts.P1 to P3. PW5 is the Investigating Officer. He had spoken about the chemical analysis report and the sketch. 5. The learned counsel for the appellant had argued before me there is some discrepancy regarding the place of incident and it is not possible to believe the place pointed out as the place of occurrence. The incident had taken place when there was day light and the indication is that it is on the side Crl. Appeal NO. 511 OF 2009 -:4:- of the road and it is not a material contradiction which goes to the root of the case. It can also be seen that the sampling and sealing had been done properly and the chemical analyst also had reported that the seal on the bottle was in tact which also show that the liquor contained 38.04% by volume of ethyl alcohol. Therefore the evidence adduced by the prosecution in the form of PWs.1 to 3 and other material documents would show that the accused was in possession of 4 liters of arrack and therefore he was guilty u/s 8(1) and (2) of the Abkari Act. I do not find any ground to interfere with the said conviction. 6. Now coming to the question of sentence, the arrack involved is of 4 liters. He is already in custody from 5.5.08. It is also seen that he was apprehended on 9.2.2005 and released on 2.3.2005. Considering the quantity involved and the other attending circumstances it is desirable to reduce the sentence to that of one year simple imprisonment and to pay a fine of Rs.1,00,000/- and in default to undergo further simple imprisonment for a period of 3 months. Crl. Appeal NO. 511 OF 2009 -:5:- In the result the Crl.Appeal is disposed as follows. (1) Finding of guilt u/Ss. 8(1) and (2) 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 year and to pay a fine of Rs.1,00,000/- and on default of which he is directed to undergo a further imprisonment of three months. (3) The accused is also entitled to set off as contemplated under law. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 511 OF 2009 -:6:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 511 OF 2009 = = = = = = = = = = = J U D G M E N T 11th June, 2009