IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 CRL.A.No. 2100 of 2010() ------------------------ (SC.137/2008 of THE ADDL.DISTIRCT & SESSIONS JUDGE ADHOC FAST TRACK-II, PATHANAMTHITTA) .................... APPELLANT: ACCUSED --------------------- CHANDRAN, AGED 54 YEARS, S/O.PADMANABHAN, PLAMOOTIL VEEDU, BLOCK NO.75, EZHIKKAD COLONY, KURICHIMUTTOM, KIDANGANNOOR VILLAGE, KOZENCHERRY TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.V.SETHUNATH RESPONDENT: COMPLAINANT/STATE ------------------- THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUOTR SRI P.A. SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. -------------------------------------------- Crl.A.No.2100 of 2010 ---------------------------------------------- Dated the 28th day of September , 2011 JUDGMENT The sole accused in S.C.No.137 of 2008 of the Additional District & Sessions Judge (Adhoc) Fast Track Court-II, Pahanamthitta is the appellant as he is aggrieved by the conviction and sentence imposed against him under section 8 (1) and (2) of the Abkai Act. 2. The prosecution case is that on 19.11.2005 at 5.30 p.m., the accused was found in possession of 1 litre of arrack in a plastic can, on the road in front of the Ezhikkadu Nursery School in Kidangannoor village and thereby the accused has committed the offence punishable under section 8(1) and (2) of the Abkari Act. On the basis of the above allegation, crime No. 29/2005 was registered in the Pathanamthitta Excise Range and after investigation, charge was laid for the said offence in the court of Judicial First Class Magistrate, Pathanamthitta, wherein C.P.No.66/2007 was registered on taking cognizance for the said offence. The learned Magistrate, subsequently by order dated 23.2.2008, committed the case to the Sessions Court, wherein the case was received as S.C.No.137/2008 and CRA 2100/10 -2- subsequently made over to the trial court. During the trial of the case, PWs 1 to 5 were examined and Exts.P1 to P7 were marked from the side of the prosecution and MO 1 was identified and marked as material object. No evidence, either oral or documentary, is adduced from the side of the defence. After considering the facts and circumstances involved in this case, and the evidence on record, the trial court has found that the prosecution has succeeded in proving the case against the accused that he has committed the offences under sections 8(1) and (2) of the Abkari Act and accordingly he was convicted thereunder. On such conviction, the learned Judge of the trial court, sentenced the appellant/accused to undergone imprisonment for one year and to pay a fine of Rs.1,00,000/- (Rs.one lakh only), in default, to undergo simple imprisonment for three months. It is the above conviction and sentence challenged in this appeal. 3. I have heard Sri V.Sethunath, the learned counsel appearing for the appellant and Sri P.A. Salim, the learned Public Prosecutor appearing for the State. I have also perused the judgment of the trial court. CRA 2100/10 -3- 4. The prosecution mainly depends upon the evidence of PWs 1, 2 and 4 to substantiate its case. Though two independent witnesses were examined as PW2 and PW3, they turned hostile to the prosecution. The remaining witnesses are PWs 1 and 4. PW4 is the then Excise Inspector of Pathanamthitta Excise Range who led the Excise party, among which, PW1 was a Preventive Officer. According to PW 4 and PW-1, during the course of conducting patrol duty on 19.11.2008, they reached at a place called Ezhikkad and the accused was found proceeding along with the road carrying a bottle and on seeing the party, the accused made an attempt to retreat and they intercepted him and on examination of the bottle, it was found to contain arrack. Thereupon sample was taken from the contents of the bottle and the contraband articles seized by preparing Ext.P1 mahazar and , the accused was arrested from the spot with the contraband article. Ext.P2 arrest memo was proved through PW4 and the arrest of the accused was intimated to his wife. As I indicated earlier, PWs 2 and 3 are the independent witnesses cited by the prosecution, out of which PW3 turned hostile though he admitted his CRA 2100/10 -4- signature in Ext.P1. PW2 deposed that the accused is his neighbour and he saw the excise party seizing MO1 bottle containing arrack and earthen plate, pot and tube used for the manufacture of arrack as per Ext.P1 mahazar. It was PW4 who registered Ext.P3 crime and occurrence report in crime No.29/2005. PW4 has stated that immediately after the arrest of the accused, he had produced the accused before the court as per Ext.P4 remand report. Ext.P5 property list and Ext.P6 forwarding note are marked through PW4. The investigation of the case was conducted by PW5 through whom Ext.P7 Chemical Analysis report is proved. As per Ext.P7 report, the sample contained 47.61% by volume of ethyl alcohol. PW5 after completing the investigation, finally laid the charge. These are the evidence referred to and relied on by the trial court in support of its finding and for convicting the appellant. 5. Though the learned counsel for the appellant vehemently submitted that the prosecution has miserably failed to prove the case beyond reasonable doubt, according to me, the above submission is not sustainable especially, in the light of the evidence on record. Going by the cross examination of the CRA 2100/10 -5- prosecution witnesses it can be seen that there is no serious challenge against the deposition of Pws 1, 4 and 5. In the present case, it is relevant to note that though PW3 turned hostile, he had admitted his signature in Ext.P1 seizure mahazar. Besides the above fact, it is also relevant to note that in support of the evidence of PW4 and PW1, there is another independent witness who was examined as PW2. It is true, when PW2 was examined, he had stated that the seizure was effected from the courtyard of the house and on a certain aspects, the testimony of PW2 is not tallying with that of Pws 1 and 4. But on a reading of the deposition of PW2, according to me, the finding and observation of the learned Sessions Judge of the trial court that, on material aspects, the evidence of PW2 is fully in conformity with the other oral evidence, appears to be correct. In the absence of any serious challenge against the prosecution evidence especially the deposition of Pws 1, 4 and 5, I find no reason to interfere with the findings of the learned Sessions Judge and the conviction recorded against the appellant. 6. In the light of the above discussion and the evidence referred to above, I find no reason to interfere with the findings CRA 2100/10 -6- of the learned Sessions Judge and accordingly, the conviction of the appellant under section 8(1) and (2) of the Abkari Act as recorded by the trial court is confirmed. 7. With respect to the sentence, the learned counsel submitted that the appellant has already undergone the substantive sentence, and a lenient view may be taken with respect to the default sentence. Having regard to the facts and circumstances involved in this case, I find no reason to reject the above submission. According to me, the default sentence can be modified and reduced into one month instead of three months, which will be sufficient to meet the ends of justice. 8. Accordingly, this appeal is dismissed confirming the conviction and substantive sentence and sentence of fine imposed on the appellant for the offence under section 8(1) and (2) of the Abkari Act. But while confirming the substantive sentence of imprisonment as well as the sentence of fine, the default sentence is modified and reduced into simple imprisonment for one month. The appellant is entitled to get the benefit under section 428 Cr.P.C. Accordingly, the above appeal is dismissed confirming the conviction, but subject to the CRA 2100/10 -7- above modification with respect to the default sentence. The registry is directed to forward the gist of this judgment to the Superintendent, Central Prison, Thiruvananthapuram forthwith for appropriate action in the matter. V.K.MOHANAN, J UDGE. Kvm/-