IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 CRL.A.No. 1195 of 2003() ----------------------------------- SC.379/2000 of ADDL. SESSIONS COURT (ADHOC)II, KASARAGOD. .................... APPELLANT/ACCUSED --------------------------------- N.P. RIYAS S/O. HAMEED, 23 YEARS, KAITHAKAD CHERIYA PALLI, CHERUVATHUR VILLAGE. BY ADV. MR.T.K.VIPINDAS RESPONDENT/COMPLAINANT ------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM REPRESENTING THE SHO, NILESHWAR POLICE STATION BY PUBLIC PROSECUTOR MR.C.M. NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1195 OF 2003 ------------------------------ Dated this the 8th day of July, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed by the Additional Sessions Judge (Adhoc-II), Kasaragod in S.C.No.379/2000. The accused was charge sheeted for the offence under Section 55(a) of the Abkari Act and convicted there under and sentenced to undergo R.I for one year together with a fine of Rs. One lakh and in default, to undergo R.I for three months. It is against that decision, the accused has come up in appeal. 2. The points that arise for determination in the appeal are (1) whether the materials are sufficient to hold that the accused is guilty under Section 55(a) of the Abkari Act (2) In case of guilt, whether the punishment awarded is excessive. 3. Points 1 and 2: Heard the learned counsel for the appellant and the Prosecutor. The learned counsel for the appellant very strongly contends before me that the case is a false case and the accused had been trapped and he had been sentenced for imprisonment. It 2 CRL.A.NO.1195/03 is the case of the prosecution that on 26.11.1998 on receipt of the information that illicit liquor is being carried or transported in Parasuram Express, the police inspector with his constables went to the railway station at Neeleshwar and while the police inspector was questioning another person namely Raghavan, the police constables who were standing some distance away from the place, found the accused with a suitcase and on suspicion, when he was asked to open the suitcase, he refused and so he was brought before the Sub Inspector of police who interrogated him and thereafter opened the suitcase and found that it contained 100 ml packets of illicit arrack manufactured in Karnataka. The samples were taken and sealed and he was arrested and then proceeded. The evidence in that matter consists of the oral testimony of PWs 1 to 5. PW1 is the Sub Inspector of Police, who had detected the crime. He had clearly deposed that he along with four constables proceeded to the railway station on reliable information that illicit liquor was being transported. They did not go inside the station and while they were standing outside, they were able to find one Raghavan with 130 packets of illicit arrack and he was being 3 CRL.A.NO.1195/03 questioned in front of the Muthappan temple and at that time the constables found the present accused with a suitcase. When questioned, he refused to open it up and so he was brought before the Sub Inspector of Police on whose instruction, it was opened and found to be 140 packets of Karanataka made illicit arrack. It is also deposed by him that few packets were opened for taking sample and two bottles of 375 ml was taken. Later, he was produced before the court and the material objects were also produced and with a forwarding note it was sent for chemical analysis and the chemical analyst's report, Ext.P7 revealed that the sample contained 34.77% by volume of ethyl alcohol. Then he had been cross examined and some confusion is attempted to be created regarding the place of incident. No material contradictions are brought in this case. So, the evidence of PW1 does not suffer from any infirmity. 4. PW2 is the village Officer, who had prepared the sketch. PW3 is the police constable who had apprehended the accused and brought to the sub Inspector of Police. He had deposed before the court in same line as spoken to by the Sub Inspector of Police. 4 CRL.A.NO.1195/03 The only contradiction, that has been brought to the notice of the court is to the effect that when questioned he had stated before the police that they saw the accused coming from inside the railway station. PWs 4 and 5 are the two independent witnesses who had turned hostile. So, the sum and substance of the prosecution case is that the accused was apprehended in and around the surroundings of the Neeleshwaram railway station with a suitcase wherein 140 packets of Karnataka made illicit liquor was available, samples were taken. It is also seen from the documents produced that seizure was on 26..11.1998 and the articles were produced before the court on 28.11.1998 i.e., within a period of 48 hours and the forwarding note and the chemical analysis report would reveal that seal on the bottle was intact and found tallied with the sample seal provided. The learned counsel would contend that two persons ran away from the railway station and they left something in the railway compartment and poor accused had been apprehended and thus a false case is foisted against him. But it is evident from the materials available that, the police had not even gone inside the railway station and the apprehension of the 5 CRL.A.NO.1195/03 accused as well as Raghavan was outside the railway station and they were caught hold of with the material objects which is produced before the court. The witnesses though official witnesses had given a true version which is intrinsically reliable. Therefore, the evidence on an over all reading appears to be acceptable and so I cannot find fault with the trial court having found the guilt of the accused under Section 55(a) of the Abkari Act. So far as the sentence is concerned he was aged 18 years at the time of the apprehension and at the stage of trial he had already become 24 years, got married and has a child to be looked after. The learned counsel would contend that considering the young age of the person and surrounding circumstances, leniency has to be shown and I am inclined to do so. I feel that the sentence can be reduced to 6 months imprisonment and default sentence can be reduced to 2 months imprisonment. 5. Therefore, the appeal is disposed of as follows: 1. The finding of guilt under Section 55(a) of the Abkari Act is confirmed. 2. The sentence is modified and the accused is sentenced to 6 CRL.A.NO.1195/03 undergo R.I for a period of 6 months and to pay a penalty of Rs. One lakh and in default of which, he shall undergo S.I for a further period of two months. The accused will be entitled to set off as contemplated under Section 428 of the Cr.P.C. The lower court shall execute the sentence. M.N. KRISHNAN, JUDGE cl 7 CRL.A.NO.1195/03 8 CRL.A.NO.1195/03