IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 CRL.A.No. 2137 of 2008() ------------------------ (AGAINST THE JUDGMENT DATED 21/08/2008 IN SC.57/2007 of THE ADDL.SESSIONS JUDGE (ADHOC II) THALASSERY) .................... APPELLANT(S): ACCUSED: ----------------------------------------- POTTANKI DAMU, AGED 58 YEARS, S/O.ACHU, THOLAMBRA AMSOM, PUZHARI, MUNDAYODE. BY ADV. MR.P.U.SHAILAJAN RESPONDENT(S): COMPLAINANT: --------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J. --------------------------- CRL.A.NO.2137 OF 2008 ------------------------------ Dated this the 7th day of July, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed in S.C.No.57/2007 of the Additional Sessions Judge (Adhoc-II), Thalassery. The accused was charge sheeted for an offence under Section 55(g) of the Abkari Act and was convicted there under and sentenced to undergo S.I. for one year and to pay a fine of Rs. One lakh and in default, to undergo S.I for six months. Set off was allowed under Section 428 of the Cr.P.C. 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 conviction under Section 55(g) of the Abkari Act is sustainable (2) In case of guilt, whether the punishment awarded is excessive. 3. It is the case of the prosecution that on 10.9.2005 at about 2 p.m, the accused was found in possession of 100 liters of wash kept in three plastic containers intended for distillation CRL.A.NO.2137/08 2 of illicit arrack and therefore, he was apprehended, sample was taken, produced before the court, analysed and found that it contained percentage of ethyl alcohol. The person, who had detected the offence, is examined as PW3 in the case. It is stated by him that, he was informed that distillation of arrack was going on in the residential compound of the accused. They proceeded to the place and saw the accused stirring something in a nearby plantation and therefore they approached him. He was found in a sitting position and the officials were able to see the three plastic cans with its top portion cut off having earthed in three nearby pits. The accused was interrogated, sample was taken from the contraband wash and the balance was destroyed. The sample was produced before the court on 12.9.2005 and sent for chemical examination. The chemical analyst's report would reveal that it contained 11.68% by volume of ethyl alcohol. 4. Pw2 is another police constable, who had accompanied PW3. He admitted the presence of the accused and that the accused was seen stirring something in a vessel CRL.A.NO.2137/08 3 and that wash has been kept in three Cans in three pits. So, the evidence of Pws 2 and 3 would reveal that the accused was found stirring a liquid and that he was preserving three Cans of wash in plastic containers and that on detection sample was taken and sent for examination and it had been revealed that the sample contained percentage of ethyl alcohol. The court also had considered the fact that there was no much delay in producing the wash before the court as well. The learned counsel would argue before me that though it is stated about three plastic Cans, it is not produced before the court. The explanation tendered by the officials is to the effect that it was got damaged on account of the lapse of time. It has to be stated that the evidence of Pws 2 and 3 established the factum of wash being stirred by the accused. The sample was taken in a sealed bottle and it was sent for chemical analysis which revealed that the sample was intact and it contained the percentage of volume of ethyl alcohol. So, the evidence is quite convincing to hold that the accused was found in possession of wash for which he did not have any CRL.A.NO.2137/08 4 proper explanation. 5. Therefore, the conviction under Section 55(g) of the Abkari Act cannot be found fault with and therefore it is suspended. So far as the sentence is concerned, the learned counsel would contend that he is aged more than 58 and he has a family to be looked after and he is in a very difficult situation and that is why he was only able to deposit a sum of Rs.2,000/=, when this Court ordered to deposit 20% of the fine. It has to be stated that he had only deposited Rs.2,000/= and that, is undergoing imprisonment from 11.3.2009 itself after getting surrendered himself before the court. 6. So, taking into consideration the totality of the circumstances, I feel, some leniency can be shown with respect to the sentence. The punishment for the offence under Section 55(g) can be six months S.I with a fine of Rs. One lakh and in default, to undergo imprisonment for one more month. The penalty amount, which was already deposited by him by way of fine, shall be credited to the governmental account as CRL.A.NO.2137/08 5 receipt of fine of Rs.2,000/=. 7. In the result, the criminal appeal is disposed of as follows: (1). The finding of guilt under Section 55(g) of the Abkari Act is confirmed. (2) The sentence is modified and the accused is sentenced to undergo S.I for six months and to pay a fine of Rs. One lakh and in default of which, he shall undergo further imprisonment for a period of one month. The amount of Rs.2,000/= already deposited by him shall be credited to the governmental account as part of the fine and that fact also had been taken into consideration for reducing the default sentence. If the accused is already in jail, he shall undergo the sentence otherwise, the lower court shall execute the sentence. M.N. KRISHNAN, JUDGE cl CRL.A.NO.2137/08 6 CRL.A.NO.2137/08 7