IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 CRL.A.No. 2270 of 2008() ------------------------ SC.17/2006 of ADDL. SESSIONS COURT (ADHOC)-II, PALAKKAD .................... APPELLANT(S): ACCUSED --------------------- KUTTAN,AGED 59 YEARS,S/O.MANIKKAN, KOONDATHARA ELAVANCHERRY,CHITTUR TALUK, PALAKKAD DISTRICT. ( C No.6541, CENTRAL PRISON, KANNUR) BY ADV. N.K.SUBRAMANIAN[STATE BRIEF] RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA REP.BY EXCISE INSPECTOR, NEMMARA RANGE,CHITTUR TALUK,PALAKKAD DISTRICT. ADV. PUBLIC PROSECUTOR SMT. K.L.LAKSHMI RANI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A . No.2270 of 2008 ---------------------------------------------- Dated, 13th November 2008. JUDGMENT The sole accused in S.C. No.17/2006 on the file of the Additional Sessions Judge (Fast Track No.II), Palakkad is the appellant. By the impugned judgment, he is found guilty for the offence under section 8(1) and (2) of the Abkari Act and accordingly, he is sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- (one lakh only) and in default of payment of fine he is directed to undergo simple imprisonment for a further period of 2 months. The appellant, who is undergoing sentence, challenges the above conviction and sentence, from jail. 2. The prosecution case is that on 24-9-2002 at about 6.15 p.m., the accused was found in possession and transporting about 2 litres of arrack in a 2 ½ litre capacity Can near the motor shed of the Koundathara Panchayath well at Koundathara desom, Elavancherry village of Chittur Taluk and thereby committed the above offence. On the basis of the said allegation, crime No.9/2002 was registered in the Nenmara Excise Range for the offence under section 8(1) and (2) of the Abkari Act, (for short, `the Act'). After CRL.A.2270/08 -:2:- completing the investigation, charge was laid before the Judicial First Class Magistrate Court, Chittur whereupon C.P.No.122/2005 was instituted. As per the order dated 12-12-2005, the case was committed by the learned Magistrate to the Sessions Court, Palakkad wherein S.C.No.17/2006 was instituted and subsequently made over to the Asst.Sessions court, (Addl.) Palakkad for trial from where the case was withdrawn and made over to the trial court for disposal. On appearance of the accused, and after hearing him, a formal charge was framed under section 8(1) and (2) of the Act which was read over and explained to him and he pleaded not guilty. Thereupon the prosecution examined PWs 1 to 6 as prosecution witnesses and marked Exts.P1 to P8. M.O.1 material object was identified and marked. When the accused was questioned under section 313 Cr.P.C., he denied all the incriminating circumstances and took a stand of total denial. After hearing the prosecution and defence, the trial court, under the issues formulated, found that the accused was guilty of the offence charged against him and accordingly he was convicted and sentenced. It is the above conviction and sentence challenged in this appeal. 3. As the appellant/accused has been undergoing imprisonment in pursuance of the impugned judgment, State Brief has been appointed. Heard the learned counsel appearing for the appellant as State Brief and CRL.A.2270/08 -:3:- the learned Public Prosecutor. 4. The learned counsel for the appellant submitted that the prosecution case is under the shadow of doubt as the detecting party failed to observe the mandatory provision which they are expected to comply while effecting seizure and drawing the sample. It is also pointed out by the learned counsel that though the excise range office is very adjacent to the place of occurrence, crime was registered only on the next day and the explanation given by the prosecution for such delay is not convincing and acceptable. According to the learned counsel, the above delay itself is sufficient to disbelieve the prosecution case as such. 5. It is also submitted by the learned counsel that the accused is now at the age of 59. The alleged contraband article was only a meagre quantity of two litres and therefore, the sentence imposed is disproportionate and exorbitant and hence a lenient view may be taken. 6. The learned Public Prosecutor submitted that the prosecution has established its case beyond doubt and though PWs 4 and 5 turned hostile, evidence of official witnesses are easily acceptable and there is no challenge against the evidence given by the official witnesses. It is also pointed out by the learned Public Prosecutor that crime was detected when the excise party was on patrol duty and after detecting the crime the contraband articles were seized and sample was taken from the spot CRL.A.2270/08 -:4:- itself, that too, in the presence of independent witness. The failure in obtaining the signature on the sample and other material objects are not fatal to the prosecution and such irregularities are not capable of vitiating the investigation and crime. The learned Public prosecutor pointed that during the trial, the case was defended by the advocate engaged by the accused himself and there was no proper and effective challenge against the procedure adopted during the investigation and no flaw part of the investigation is pointed out to create any doubt. According to the learned Public Prosecutor, the trial court had elaborately considered the entire facts and circumstances involved in the case and came into a correct conclusion and therefore no interference is warranted. 7. I have carefully considered the contentions advanced by the learned counsel for the appellant as well as the learned Public Prosecutor and also perused the materials and evidence on record. PWs 1 and 2 gave evidence and their evidence are not effectively challenged. As stated earlier, the offence was detected when PWs 1 and 2 were on patrol duty and the contraband articles were seized as per mahazar prepared then and there. Ext.P2 is the seizure mahazar which is a contemporaneous document and the same was supported by the oral testimony of PWs 1 and 2. It has to be noted that the prosecution has tried to adduce independent evidence by examining PW4 and 5 whose CRL.A.2270/08 -:5:- presence was procured at the time of seizure. But when PW4 and 5 were examined, they turned hostile towards the prosecution. Still then the evidence of PW1 and 2 are sufficient to prove the case of prosecution. In the absence of any contradictions or discrepancies in the evidence of PW1 and 2, their evidence cannot be discarded merely for the reason that they are official witnesse and independent witnesses turned hostile. So on the strength of evidence of PWs 1 and 2 supported by Ext.P2 seizure mahazar, it can be safely concluded that the prosecution has established its case beyond reasonable doubt. 8. The learned counsel for the appellant pointed out that though the case was detected at 6.15. p.m on 24.9.2002, the case was registered only on 25.9.2002 and thus there is some delay which will go against the prosecution. I have considered the above contention. Going by the evidence of PW.3, it can be seen that the delay was properly explained and according to him, he was not in charge of the station and the Inspector has directed him to register the case only on his arrival on that day but unfortunately the Inspector was on leave and therefore, the case could be registered only on the next day. It is true that there is delay in registering the crime but the delay occurred in registering the crime is properly explained by PW3. The defence failed to point out any prejudice caused to the accused because of the delay. It is also CRL.A.2270/08 -:6:- relevant to note that, as rightly found by the trial court, the drawing of sample in only one bottle and the failure in obtaining signature on the sample bottle etc. are in no way prejudiced the accused and because of that irregularity, neither the investigation nor the trial will be vitiated. In the light of the above facts and circumstances, I find no reason to interfere with the order of conviction passed by the court below. 9. Regarding the sentence, the learned counsel submitted that the accused is at the age of 59 years and the alleged quantity will come only to two litres of arrack and therefore a lenient view may be taken. 10. I have considered the above submission. The prosecution has no case that the appellant/accused is a habitual offender. Therefore, considering the fact that the appellant/accused is a first time offender and also he is at the age of 59 years, I am of the view that some modification can be made with respect to the sentence. It is borne out from the records that the appellant/accused was arrested on 24.9.2002 and he was released on bail only on 15.1.2003. Besides the above, pursuant to the impugned judgment, he is undergoing imprisonment from 28th August, 2008 onwards In view of the above facts, the sentence is reduced from one year to 5 months. Since the fine amount is fixed as minimum amount, no interference is warranted. But the default sentence is reduced from two months to one month. Set off under Section 428 of CRL.A.2270/08 -:7:- Cr P.C. is allowed. 11. In view of the facts that the appellant has already undergone six months and 25 days imprisonment and set off is allowed, he shall be released forthwith, if he is not required in any other case. In the result, the appeal is dismissed confirming the conviction but subject to the above modification with respect to the sentence. V.K.MOHANAN, JUDGE kvm/- CRL.A.2270/08 -:8:- V.K.MOHANAN, J. Crl.A.2270/2008 Judgment Dated:13.11.2008.