IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 CRL.A.No. 542 of 2003() --------------------------------- SC.225/2000 of ADDL. SESSIONS (AD-HOC COURT-II), KASARAGOD .............................................................................. APPELLANT(S): ACCUSED: -------------------------------------- GOPINATHAN NAIR, S/O. KRISHNAN, AGED 30 YEARS, RESIDING AT CHEROLI, PATHANADUKKAM, MULIYAR VILLAGE, KASARAGOD. BY ADVS. SRI.M.SASINDRAN SRI.M.B.PRAJITH RESPONDENT(S): COMPLAINANT: ------------------------------------------------ STATE - REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SMT.M.K.PUSHPALATHA, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.542 OF 2003 -------------------------- Dated this the 10th day of July, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the conviction and sentence passed in S.C.225/00 of the Addl. Sessions Judge, Ad hoc-II, Kasaragod. The accused was charge sheeted for the offence u/s.55(g) of Abkari Act and on trial was convicted and sentenced to undergo rigorous imprisonment for a period of 1 year and to pay a fine of Rs.1 lakh and in default of which to undergo rigorous imprisonment of 3 months. It is against that decision, the accused has come up in appeal. The points that arise for determination are, 1.Whether the materials available are sufficient to convict the accused u/s.55(g) of Abkari Act ? 2.In case of guilt whether the punishment imposed is excessive ? 2. Points 1 and 2 :- Heard the learned counsel for the 2 CRL.A.No.542 OF 2003 appellant as well as the prosecutor. The learned counsel for the appellant very strongly contended before me that, there is no scene mahazar prepared in this case and the independent witnesses have turned hostile and so materials are lacking to convict the accused under the provisions of the Act. On the contra, the prosecutor would contend that things are done only in proper order and it does not call for any interference. First regarding the non-preparation of the scene mahazar. It has to be stated that on 20.7.98, the excise people on information proceeded and when they reached near the T.V.Centre and community hall at Cheroli in Mooliyar panchayat, they found the accused walking with an aluminium vessel, on his right hand. He was sited at a distance of 20 mtrs. and on seeing them the accused attempted to run away but he was apprehended, interrogated and on examination, it was found that the vessel contained 8 ltrs. of wash and it was producing pungent smell and on smell and taste it was revealed that it was wash, used for the preparation of illicit arrack, he was arrested, sample was 3 CRL.A.No.542 OF 2003 taken in a 375 ml. container and the balance was also taken and sealed. The accused was arrested and further proceedings were done. It can be scene that on that date itself, by Ext.P4, the material objects seized had been produced before the court, which contains the endorsement of the learned Magistrate. Ext.P5 would reveal that the forwarding note was also prepared on 21.7.98 and it was despatched for examination on 12.8.98. Ext.P6 would reveal that the bottle received was intact and found tallied with the sample seal provided. The examination revealed that the sample contained 12.92 % by volume of ethyl alcohol. In order to prove the case, PW1 has been examined. PW1 is the preventive officer and he had deposed before the court that they found the accused near the T.V. Community centre with a vessel and that he was intercepted, interrogated and examined and it was found that the vessel contained approximately 8 ltrs. of wash, which on smell and taste was found to be wash. The sample was taken and the accused was arrested. Though he has been cross 4 CRL.A.No.542 OF 2003 examined at length, on material particulars, there are no contradictions and there is lot of questions put to test his memory and that will not militate against the case of the prosecution. He had stated that sample was taken by one Sukumaran, the Excise Guard and it has been sealed. It is true that he had deposed that the sample was handed over to one P.K.Vijayan and it will be revealed from the scene mahazar. PW2 is an independent witness who had turned hostile and PW4 is Mr.P.K.Vijayan. He had submitted that he was the Excise Inspector and he has filed the charge sheet and also forwarded the forwarding note. In the cross examination he would submit that, the forwarding note was prepared on 22.7.98. He had reiterated that the samples and the material objects were submitted before the court on 20.7.98 itself. PW3 is one Hamsa and he had deposed that the property list and property was taken to the court by a guard and he does not know through which guard it was sent. Just because there is some difference with respect to the person to whom it has been 5 CRL.A.No.542 OF 2003 entrusted, one can not hold that the prosecution case is false or bad. It has to be stated very clearly in this case that, the articles were seized on 20.7.98 and it has reached the custody of the court on 20.7.98 itself and the property list convincingly establishes that the bottle was sealed and labelled. The forwarding note indicates that, the forwarding note was prepared on 21.7.98, signed on 22.7.98 and despatched by the court on 12.8.98. I am conscious of the fact that a conviction in an abkari offence can be done only when the court's conscience is satisfied that, the liquor possessed by the accused had been taken as sample and that sample has been properly sealed and has reached the court and it had undergone chemical analysis and it has established that it contained volume of ethyl alcohol. The learned counsel had pointed out the difference in dates shown in the chemical analysis report. It refers to Judicial First Class Magistrate's letter dated 23.7.98 and subsequently refers to the receipt of the article on 13.8.98 and therefore there is no suspicious 6 CRL.A.No.542 OF 2003 circumstances. I do not find any such suspicious fact in this case for the reason that, it is very clear that the forwarding note reached the court on 22.7.98. The forwarding note was sanctioned by the court and that is why an accompanying letter on 23.7.98 should have been prepared. But the matter will be despatched only when the constable or an excise official comes and takes it to the lab in person. He had taken it to Calicut on 13.8.98 and it is received on that date. So I do not find any mistake committed by any authority in that matter. Further the chemical analysis report also very clearly shows that, the seal on the bottle was intact and found tallied with the sample seal provided. Now on an analysis of the entire materials, I am convinced that the accused had been apprehended and arrested and the wash has been recovered from him and it has been sent for chemical analysis and it is proved that it is ethyl alcohol. Therefore the conviction u/s.58 of Abkari Act can not be said to be unsustainable and therefore I confirm the conviction. So far as the sentence is concerned, the quantity is 7 CRL.A.No.542 OF 2003 only about 8 ltrs. of quash and even the learned Sessions Judge has noted that the accused is having two minor children to be looked after, so leniency is shown therein. Therefore I reduce the sentence to 6 months and default sentence from 3 months to 1 month. In the result the criminal appeal is disposed of as follows :- 1. The conviction u/s.55(g) of Abkari Act is sustained. 2. The sentence is modified and the accused is sentenced to undergo rigorous imprisonment for a period of 6 months and to pay a fine of Rs.1 lakh, in default of which to undergo simple imprisonment for one more month. He is entitled to set off as contemplated u/s.428 of Cr.P.C. The lower court shall execute the sentence. M.N.KRISHNAN, JUDGE ami.