IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 CRL.A.No. 1588 of 2007() ------------------------ SC.392/2001 of ADDL.SESSIONS COURT-TRIAL OF ABKARI ACT CASES,NEYYATTINKARA CP.305/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II,NEYYATTINKARA .................... APPELLANT: APPELLANT -------------------- THANKAPPAN, S/O.PAL PILLAI, CONVICT NO.9048, CENTRAL PRISON, TRIVANDRUM. BY ADV. LIJU M.P[STATE BRIEF] RESPONDENTS: ------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR OF THE HON'BLE HIGH COURT AT ERNAKULAM. BY PUBLIC PROSECUTOR SRI JAI GEORGE. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A. No.1588 OF 2007 ---------------------------------------------- Dated, 19th June, 2008. JUDGMENT This jail appeal is preferred by the accused in Sessions Case No.392 of 2001 challenging the conviction and sentence passed by the court of the Addl. Sessions Judge for the trial of Abkari cases, Neyyattinkara by its judgment dated 30.4.2007 by which the appellant is convicted under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of 3 years and to pay a fine of Rs.1,00,000/-(one lakh only), and in default of payment of fine, to undergo rigorous imprisonment for a period of 6 months. 2. This appeal is prosecuted by Adv. Sri Liju M.P., appointed as State Brief. 3. The prosecution case is that the Excise Inspector of Amaravila Excise Range office, on 13-4-1999, at about 11.30 a.m. while conducting patrol duty, found the accused at Amaravila-Kattiluvita road, in front of Government Tiles CRL.A.NO.1588/2007 -:2:- Factory at Keezhkolla Desom, Chenkal Village , in possession of a 5 litre black jerrycan which on examination was found to contain 3 litres of arrack in it, which the accused possessed in contravention of the provisions of the Abkari Act and thereby committed the offence punishable under section 58 of the Abkari Act. After effecting seizure of thondi article and complying with the legal formalities, the accused was arrested and a case was registered. After the arrest of the accused, the crime and occurrence report was lodged before the Judicial Magistrate of the Ist Class-II, Neyyattinkara. After completing the investigation, Final Report was laid by another Excise Inspector of Amaravila Excise Range, upon which the court took cognizance and the case was committed to the Sessions Court, Thiruvananthapuram, which in turn made over to the Assistant Sessions Court, Neyyattinkara and later on, the case was made over to the Addl.Sessions Court for the trial of the Abkari Act cases, Neyyattinkara. 4. In the trial court, the accused was produced from CRL.A.NO.1588/2007 -:3:- jail and he was represented by a Lawyer appointed by the Taluk Legal Service Committee, Neyyattinkara and framed a charge against the accused under section 58 of the Abkari Act which was read over and explained to him, but he denied the charge which resulted in further trial of the case. Accordingly, PWs 1 to 5 were examined on the side of the prosecution and Exts.P1 to P10 were marked and M.O-1 was marked as material object. No evidence was adduced from the side of the defence. 5. During the course of trial, four issues were framed by the court below and finally, the trial court found that the accused is guilty of the offence under section 58 of the Abkari act and accordingly he was sentenced to undergo rigorous imprisonment for a period of 3 years and to pay a fine of Rs.1,00,000/-(Rs.one lakh only). It is also ordered to undergo rigorous imprisonment for a period of 6 months in case of default of payment of fine amount. It is the above finding and conviction of the trial court as well as the sentence being challenged in this appeal. CRL.A.NO.1588/2007 -:4:- 6. I have heard the counsel for the appellant Sri Liju M.P., appointed as State Brief, and the learned Public prosecutor. I have perused the materials and evidence available on record and also considered the arguments advanced by the counsel for the appellant as well as the public Prosecutor. 7. The crux of the prosecution allegations is that the accused was found in possession of 3 litres of illicit arrack in a 5 litre can when he was arrested on 13-4-1999. To prove the prosecution case, though six charge witnesses were cited, of whom CWs 4 and 5 were given up by the Public Prosecutor and others were examined as PWs.1 to 4. PW-5, the Thondy Section Clerk of the court of the Judicial First Class Magistrate, Neyyattinkara was examined as PW-5 additionally while the documents from the Chemical Lab was caused to be produced and marked as Exts.P7 to P9, in order to prove the validity of the Chemical report, Ext.P6. PWs 2 to 4 are the Excise Officials of whom PW2 is the Preventive Officer of the Amaravila Excise Range, who accompanied the CRL.A.NO.1588/2007 -:5:- Detecting Officer, the Excise Inspector of Amaravila Excise Range at the time of detection. Though PW-1 was cited to prove the seizure mahazar, he turned hostile to the prosecution. The official witnesses deposed before the court in terms of the charge. PW-2 deposed that they found the accused walking with a 5 litre can who, on suspicion, was intercepted and the excise officials verified the contents of the can by smelling and tasting the liquid thereof and found to be illicit arrack and accordingly the accused was arrested and prepared Ext.P1 mahazar. PW-2 is one of the signatory of Ext.P1 mahazar. He also deposed about the procedure adopted by the excise officials while effecting the seizure, sealing of the can etc. PW2 had categorically identified M.O-1 can as well as the accused in the court. PW.3, the detecting officer deposed in favour of the prosecution and he corroborated the evidence of PW-2. The trial court found that though PWs-2 and 3 were cross examined in detail, their evidence are unshaked believable and their versions are credible. PW-4, the Excise Inspector CRL.A.NO.1588/2007 -:6:- who conducted investigation, was cross examined for the defence side, but nothing was brought out against the prosecution case. Thus according to the prosecution, the charge against the appellant/accused proved correctly and the judgment of the court below is perfectly valid and the appellant deserves to be convicted. 8. On the other hand, the counsel for the appellant pointed out that the prosecution case itself is a false one. In order to substantiate the case, the learned counsel for the appellant invited my attention to the deposition of PW-5, the Thondy Section Clerk of the trial court and submitted that the M.O-1 can does not contain signature of the accused, witnesses and the detecting officer. On going by the deposition of PW-5, it can be seen that on 13-4-1999, he had received the thondy article under Ext.P4 on verification of the tamper proof nature of the seal of the thondy that it was produced tamper proof that he registered the same in the thondy Register in page 64 as T 213/1999 which identified as Ext.P10. PWs 2 and 3 when cross examined in CRL.A.NO.1588/2007 -:7:- the court identified MO-1 can. They have also deposed in the court that Ext.P1 mahazar contains their signature and effectively sealed the can in a tamper proof manner and labelled the same on the spot and prepared the crime and occurrence report. It is also stated that the thondy article was received in Court on 13-4-1999 as T.213/99 that the court received the thondy with the seal in a tamper proof condition. The evidence of PWs 2 and 3 corroborated the evidence of PW-5. 9. After an elaborate discussion and appreciation of the evidence of PW-5, the trial court found in favour of the prosecution regarding the sealing of MO-1, sampling and sending the samples for chemical examination in favour of the prosecution. Though PWs 2,3 and 5 were cross examined extensively, nothing was brought out to disbelieve their version. The trial court found that the prosecution cannot be blamed for the omissions, if any, committed by the Thondy Section Clerk or by the learned Magistrate and it is also held that the evidence adduced by the Thondy Section Clerk, CRL.A.NO.1588/2007 -:8:- PW-5, who is a public servant who deposed as the mouth piece of the learned Magistrate is uninterested, untainted, unbiased and without prejudice. Thus the trial court came into the conclusion that the sampling was effected properly and the sample bottle was made tamper proof and properly forwarded to the Chemical Examiner, in the same condition, without any interference from any quarters. 10. I am satisfied that the finding of the court below that the Chemical Examiner in the report, Ext.P6 certified that such a sample bottle was received there, the seal of which was tallied with the sample seal provided. 11. In this appeal, the only point for consideration is regarding the mode of seizure on M.O-1 and also the sampling etc. about which I have already discussed and came into the conclusion that the finding of the court below is correct and nothing brought out to take a different view. 12. Counsel for the appellant submitted that the sentence awarded against the appellant is exorbitant and disproportionate to the allegations levelled against him. CRL.A.NO.1588/2007 -:9:- Therefore, it is submitted that the sentence may be reduced. On the other hand, the learned Public Prosecutor submitted that the appellant herein involved in four more cases besides the present one and therefore he is not entitled to get any leniency in the matter of sentence. Inviting my attention to the judgment dated 12-6-2008 in Crl.A.No.1586/2007, the learned counsel for the appellant submitted that this Court in another case interfered and reduced the substantial sentence and further requested that the same treatment may be given to the appellant in this case also. It is relevant to note that the fine awarded in this case is the minimum amount of fine and therefore no interference is warranted at all. According to me, considering the entire facts and circumstances involved in the case, the substantive sentence of rigorous imprisonment for three year and the default sentence of 6 months can be reduced into Rigorous imprisonment for a period of one year and rigorous imprisonment for a period of three months respectively. No other point brought to my notice for consideration. CRL.A.NO.1588/2007 -:10:- 13. In the result, this appeal is allowed partly and the conviction and sentence of fine imposed on the appellant are upheld. But the substantive sentence of imprisonment is modified and reduced to one year and default sentence is also reduced to 3 months. As the trial court has already allowed set off, no separate order is necessary under that count. 14. The records shall be sent to the court below forthwith along with the copy of the judgment. Revised warrant of commitment shall be issued by the court below immediately. V.K.MOHANAN, JUDGE kvm/- CRL.A.NO.1588/2007 -:11:- V.K.MOHANAN, J. CRL.A. No.1588/2007 Judgment Dated:19-6-2008