IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 CRL.A.No. 1757 of 2003 ---------------------------------- (AGAINST THE JUDGMENT DATED 22/09/03 IN SC 9/2000 OF THE ADL. DIST. AND SESSIONS COURT (ADHOC), FAST TRACK-1, MANJERI) APPELLANT(S): 2ND ACCUSED. -------------------------------------------- CHANDRAN S/O.VALANCHI, VALLIKATTUKUZHIYIL, THURUTHIYADU, VAZHAYOOR. BY ADV. SRI.V.M.SYAM KUMAR SMT.KRIPA ELIZABETH MATHEWS RESPONDENT(S): COMPLAINANT. ------------------------------------------------ STATE OF KERALA REP. BY THE] PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1757 OF 2003 ------------------------------ Dated this the 29th day of July, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed in S.C.No.9/2000 of the Additional Sessions Judge (Adhoc), Fast Track Court-I, Manjeri by the second accused. The second accused was charge sheeted for the offences under Sections 55(a) and (g) and was convicted for the offence under Section 55 (g). He was sentenced to undergo imprisonment for a period of three years and to pay a fine of Rs. One lakh and in default to undergo further imprisonment for a period one year. It is against that decision, the second accused has come up in appeal. 2. The points that arise for determination in the appeal are whether materials are sufficient to hold the appellant guilty under Section 55(g) of the Abkari Act (2) in case of guilt, the sentence imposed is excessive. 3. Points 1 and 2: Heard the learned counsel for the appellant as well as the Public Prosecutor. The learned counsel for the appellant 2 CRL.A.NO.1757/03 very strongly contends before me that materials are not sufficient and evidence of the witnesses are not acceptable and really there is nothing to connect the accused with the crime. 4. It is the case of the prosecution that on 23.10.1998 at about 6.15 p.m the accused on information that the appellant and one Ravi were distilling illicit arrack in a Cashew Plantation belonging to one Kuttikrishnan, the excise party proceeded and on their arrival, the first accused who was holding a Can, put it down and ran away and he could not be apprehended immediately. They were able to find the present appellant stirring in a tin pot with a stick and on examination, it was found to be wash. As A1 could not be apprehended and as the Can had been broken, immediately sample was taken from the Can and later from the tin containing wash in the presence of the witnesses and it was sealed. The accused was arrested and later produced before the court. 5. The supporting evidence is that of PWs 1 and 2. PW1 had deposed about the factum of their patrolling, visit of the place where the accused was found and that the second accused namely, the appellant was stirring a liquid in the 3 CRL.A.NO.1757/03 tin vessel which was placed beneath the earth. The sample was taken from the pot containing wash as the material object but the stick which was stirred was not taken. Later, the matter was proceeded further. He had been cross examined at length. The cross examination is directed on the question of ownership of the property and the fact that the accused was residing in a far of place from the garden and the specific contention is that as the accused did not care to carry the wash which they have found out, the officials have foisted a false case. 6. PW2 is the person who had accompanied Pw1. He had also spoken in line with the evidence of PW1 and he had also categorically denied the suggestion that the appellant was booked in a false case. PW3 and PW4 are the independent witnesses to the seizure mahazer who had turned hostile. PW5 had spoken about his signature in the scene mahazer. PW7 is the person who had conducted the investigation and had spoken about the way in which the investigation was done and how the matter has been proceeded with. 7. DW1 is a witness examined by the accused to prove that the accused was an employee and he was caught hold of 4 CRL.A.NO.1757/03 by the police when he disobeyed their order to carry the tin. The seizure mahazer speaks about the way in which the things have been done. The property had reached the court and it had been sent for chemical analysis. The property list reached the court on 2.11.1998. The chemical examiner's report would reveal that 300 ml of wash was received by the chemical analyst and seals on the bottles were intact and found tallied with the sample seal provided. The percentage of ethyl alcohol in the wash was 12.62%. 8. It is argued that without proving the possession of the place where the materials were found, the court was not right in arriving at a conclusion that the accused was guilty of the offence. It is the fairly settled principle of law that when a person is found to be in possession of wash or liquor in a particular place, the ownership of the property is not material to decide the question for the reason that the offence relates to the liquor seized and not relating to the property. Therefore, if the court accepts the evidence of PWs 1 and 2 on that point, then this argument will not last long. It is true that the independent witnesses had turned hostile. The hostility of the independent witnesses as observed by a 5 CRL.A.NO.1757/03 learned Judge of this court in the decision reported in Sivaram v. State of Kerala (1981 (1) KLT SN Page 9 Case No.17) has become a usual practice. Then the court considered under what circumstances, the evidence of official witness can be accepted. The court held that the caution to be applied is that there must be meticulous scrutiny to find out intrinsic reliability and inherent probability of the evidence. I have carefully scrutinized the evidence of Pws 1 and 2. They have no axe to grind against the accused. The mere suggestion that as he failed to carry the tin as directed by them, a false case is foisted is too difficult to be accepted. Their evidence pin pointedly shows that when they visited the property, they saw the present appellant stirring the wash in a vessel. The accused has been arrested from the spot, sample taken, produced before the court and sent it for analysis which revealed the presence of ethyl alcohol. I feel the chain is completed to conclude the guilt of the accused. Therefore, I do not propose to interfere with the conviction ordered under Section 55(g) of the Abkari Act. 9. So far as the sentence is concerned, I feel that the court below was little harsh most probably on account of the 6 CRL.A.NO.1757/03 social impact that will be created. The appellant is a poor person. They were not able to find any utensil which is normally used for the illicit distillation of the arrack from that place. Therefore some leniency can be shown and I feel, justice can be met by reducing the sentence to three months imprisonment and also reducing the default sentence to one month. 10. In the result the criminal appeal is disposed of as follows: 1.The finding of guilt under Section 55(g) is sustained. 2. The sentence is modified and the appellant herein namely the second accused is sentenced to undergo R.I for 3 months and to pay a fine of Rs. One lakh and in default to undergo further sentence for one month. He is also 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.1757/03