IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 CRL.A.No. 259 of 2008(B) ----------------------------------- SC.1247/2003 of ADDL.SESSIONS COURT (ABKARI CASES), KOTTARAKARA, DATED 14.12.2007. ....................................................... APPELLANT(S): APPELLANT ---------------------------------------- GOPALAKRISHNAN, C.NO.2434, CENTRAL PRISON,, THIRUVANANTHAPURAM. BY ADV. SRI.R.KRISHNA KUMAR(STATE BRIEF) RESPONDENT(S): RESPONDENT ---------------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV.SRI.C.M.NAZAR, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.259 OF 2008 -------------------------- Dated this the 23rd day of June, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the conviction and sentence passed in S.C.1247/03 of the Addl.Sessions Court, Kottarakkara. The appellant, namely the 1st accused, was found guilty u/s.55(a) read with 8(1 & 2) of the Abkari Act and was sentenced to undergo simple imprisonment for a period of 6 years and to pay a fine of Rs.1 lakh and in default to undergo 6 months more imprisonment. It is against that decision the accused has preferred the appeal from the jail which has been numbered and a State Brief has been appointed. Adv.Sri.R.Krishnakumar is the State Brief and he had effectively argued the case on behalf of the accused. The accusation against the accused and another person is to the effect that they were found in possession of a can which contained 30 ltrs.of illicit arrack which was intended for sale and thereby had committed offence as alleged. During the pendency of the CRL.A.No.259 OF 2008 2 proceedings the 2nd accused died and so the crime as against him has been abated and only the 1st accused stood for the trial. The points that arise for determination in the appeal are, 1. Whether the accused has committed offence punishable u/s.55(a) read with Sec.8 (1) and (2) of the Abkari Act ? 2. Is there anything to interfere with the said decision ? 3. Whether the quantum of punishment awarded is excessive ? 2. Points 1 and 2 :- These points deals with the guilt of the accused. It is the case of the prosecution that on 4.7.2001, when the Circle Inspector of Excise along with his party who were on patrolling duty reached near the estate of one Sudhakaran, they saw two persons walking through the eastern side of the rubber estate with one person holding a can on his shoulder and the other person walking in front of him. On seeing the excise officials, the person walking in the front said something to the other person and ran away. Though he was CRL.A.No.259 OF 2008 3 chased, he could not be caught hold off. The other person wanted to run away, after placing the cannas on the floor but he was restrained and examined. On examination, it was found in the can possessed by him, that there was 30 ltrs. of arrack, which was found to be so, on smelling and tasting. Thereafter he was apprehended and in the presence of the witness, sample bottles of 300 ml. was taken and it was sealed and labelled and other can with the remaining contends was also sealed and labelled. The accused was arrested and produced before the court and this is the version of PW1, the Excise Circle Inspector. He had been cross examined at length and nothing has been brought out to discredit his evidence in the case. PW2 was the Preventive Officer at the relevant point of time, who had accompanied PW1 and he had also deposed about finding of the accused, his arrest and seizure and also about the sampling and sealing. PW3 was a person, who was in charge of the Excise Inspector and who had received the material objects and the accused, and produced him before the court. He also CRL.A.No.259 OF 2008 4 speaks about the chemical analysis report which contained 38.96 % by volume of ethyl alcohol. PW4 is a witness to the mahazar and PW5 is an independent witness who had turned hostile to the prosecution. The material evidence available in this case is that of Pws.1 to 3, who are the official witnesses. So far as the reliability of the official witnesses are concerned, it is a settled law that if the court is able to meticulously scrutinise and scan the evidence and find out that it is believable, then there is nothing which stands in the way of accepting the same to have a conviction on the basis of the same. So taking care of that aspect, the evidence of Pws.1 to 3 is to be scrutinised. Pws.1 to 3 had no axe to grind against the present accused. He was the person who was actually found to be in possession of the can which contained the contraband liquor. He was restrained, searched and on taste and smell it was revealed that it is arrack. Though they had been subjected to severe cross examination, nothing has been brought out to discredit their evidence or to exhibit their undue interest in prosecuting the accused. CRL.A.No.259 OF 2008 5 Therefore it has to be held that the prosecution has succeeded in proving before the court, the possession of the contraband liquor with the present appellant and the appellant did not give any explanation to show how he is legally entitled to be in possession of that liquid. Therefore, possessing illicit arrack is an offence u/s.8 of the Abkari Act as well as S.55 (a) of the Abkari Act. So far as taking of the sample is concerned, the witnesses had spoken about how the sample was taken and without any undue delay it had been produced before the court and a forwarding letter had been sent to the chemical analyst, and on examination it was found that it contained ethyl alcohol by 38.96 % volume. So that ingredients also stands established. Since the procedural formalities are properly complied, no prejudice has been caused to the accused. So on the basis of these materials, it has to be held that the prosecution has succeeded in proving that the accused was found in possession of about 30 ltrs. of illicit arrack, which is punishable under the provisions of the Abkari Act. So I do not find any grounds to CRL.A.No.259 OF 2008 6 interfere with the conviction passed by the court below. 3. Point No.3 :- Next question is regarding the sentence. At the time of even search, there was a case for the appellant herein, that he was only an employee of the 2nd accused and admittedly that person could not be apprehended and later he died as well. So the role of the 1st accused , of course though punishable, requires some consideration at least with respect to the quantum of punishment. The court below has convicted him to undergo 6 years imprisonment with a fine of Rs.1 lakh and in default sentence of 6 months. I feel interest of justice can be met by reducing the sentence to 3 years with a fine of Rs.1 lakh and in default, sentence of 3 months. To this extend the sentence stands modified. In the result, the criminal appeal is disposed of as follows :- 1. The finding of guilt u/s.55 (a) read with S.8 of the Abkari Act stands confirmed. 2. The sentence is modified and the accused is sentenced to undergo simple imprisonment for a period of 3 years CRL.A.No.259 OF 2008 7 and to pay a fine of Rs.1 lakh and in default of which he has to undergo further simple imprisonment of 3 months as default sentence. He is entitled to set off. The registry is also directed to send a copy of the judgment to the concerned jail authorities for necessary action. Accordingly, this criminal appeal is disposed of. M.N.KRISHNAN, JUDGE ami.