IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 16TH JANUARY 2009 / 26TH POUSHA 1930 CRL.A.No. 2720 of 2008() ------------------------ SC.850/2007 of ADDL.SESSIONS JUDGE, (ABKARI ACT CASES), KOTTARAKKARA) .................... APPELLANT(S): APPELLANT ----------------------- REMANAN, C.NO.2886, CENTRAL PRISON, THIRUVANANTHAPURAM. BY ADV. D.AJITH KUMAR [STATE BRIEF] RESPONDENT(S): RESPONDENT ------------------------- STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI AMJAD ALI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/01/2009, THE COURT ON THE SAM E DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A.2720 of 2008 ---------------------------------------------- Dated, 16th January, 2009. JUDGMENT This is an appeal at the instance of the sole accused in S.C. No.850 of 2007 on the file of the Court of Addl.Sessions Judge, (Abkari Act Cases), Kottarakkara. By the judgment dated 8.5.2008, in the above case, the accused/appellant is convicted under section 8(1) of the Abkari Act. In this appeal, from the jail, he challenges the above conviction and sentence. 2. The prosecution case is that at about 6 p.m. on 26.7.2000, the accused was found in possession of 2 litres of arrack in a 2 ½ litres capacity Can for sales through the canal road in front of the residence of one Damodaran at Punnala, On the basis of the said allegation, crime No.39/2000 was registered in the Excise Range, Pathanapuram. 3. After the investigation, final charge was laid in the Judicial First Class Magistrate Court-III, Punalur wherein C.P.No.59/2002 was instituted. Thus the case was committed to the Sessions Court, Kollam from where it was made over to the Asst.Sessions Court, Kottarakkara. In the said court, the accused appeared and he was enlarged on bail, but subsequently the accused was absconding and thus the case Crl.A.No.2720 of 2008 -:2:- removed to LP No.19/2007. Thereafter the accused was arrested and the case refiled as S.C.850/2007. A formal charge was framed against him and PWs 1 to 5 were examined from the prosecution side and also produced Exts.P1 to P7. The Can was identified and marked as M.O.1. Finally, the court found that the accused is guilty of the offence under section 8(1) and (2) of the Abkari Act. No sentence is awarded under section 8(2) of the Act, but under section 8(1), he is sentenced to simple imprisonment for two years and to pay a fine of Rs.1,00,000/-. The default sentence is fixed as simple imprisonment for six months. Set off is allowed. It is the above conviction and sentence challenged in this appeal. 4. As the appellant is undergoing imprisonment in pursuance of the judgment and this appeal is preferred from jail, Adv. Sri D.Ajith Kumar is appointed as State Brief to prosecute the appeal for and on behalf of the appellant. I have heard the learned counsel appearing as State Brief and also the learned Public Prosecutor. 5. The prosecution mainly depends on the evidence of PWs 1, 2, 4 and 5 to prove its case. PW4 is the Assistant Excise Inspector who detected the crime. PW1 is the Preventive Officer who accompanied PW4 at that time. PW3 Excise Guard also went along Crl.A.No.2720 of 2008 -:3:- the detecting party. PW5 is the successor of PW4 and he laid the charge. PW2 is the attestor who is an independent witness to Ext.P1 mahazar. Ext.P2 is the arrest memo and Ext.P3 is the arrest intimation notice. Ext.P4 is the occurrence report. Ext.P5 is the property list. Ext.P6 is the requisition for sending the sample for chemical analysis. The chemical analysis report obtained is marked as Ext.P7. PWs 1, 3 and 4 deposed that on 27.6.2000, while they were on patrol duty and reached the canal bridge, Punnala, they found the accused proceeding through the road by holding M.O.1 Jerry Can. The accused was intercepted and on questioning, the content in the Can was identified as illicit arrack. They further deposed that on testing the content by tasting and smelling, they confirmed that the same was illicit arrack. Accordingly, the contraband articles were seized as per Ext.P1 mahazar. As described in Ext.P1 seizure mahazar, the sample was also drawn from the contraband article and it is also stated that the accused was arrested from the spot itself. Though PW2 turned hostile, he had admitted his signature in Ext.P1. The accused took a defence to the effect that he was falsely implicated in the crime at the instance of Soman, since there was a labour dispute between the accused and the said Soman. According to the accused, Ext.P1 is a Crl.A.No.2720 of 2008 -:4:- fabricated one. The trial court, after considering the evidence on materials, especially, in the testimony of PWs 1, 3 and 4 together with Ext.P1 seizure mahazar, found that the contraband articles were seized from the possession of the accused from the place of occurrence. The date of occurrence was on 26.7.2000 at 6 p.m. and the contraband article, the accused and the documents were produced before the Court on 26.7.2000 itself. The articles so produced before the court were ordered to be kept under safe custody of the Excise Officials as per the order of the learned Magistrate dated 3.8.2000. So there was no chance for tampering the evidence and the accused is in no way prejudiced. Thus, the trial court after appreciation of the evidence and materials on record found that the accused is guilty of the charges levelled against him. On appreciation of the evidence, and on perusal of the judgment of the trial court, I find no reason to interfere with the finding arrived on by the court below. Consequently, the conviction is confirmed. 6. Regarding the sentence, learned counsel for the appellant/accused submitted that some leniency may be shown to the accused as he is 55 years old. It is also submitted by the learned counsel that the quantity involved is only 2 litres of illicit arrack, but the Crl.A.No.2720 of 2008 -:5:- sentence awarded is disproportionate to the quantity alleged to have been recovered from the possession of the accused. I have considered the above submission on merit. Admittedly, the accused is at the age of 56 years. The quantity involved is only 2 litres of illicit arrack. 7. Having regard to the facts and circumstances involved in the case, I am of the view that certain modifications can be made with respect to the sentence. Accordingly, the substantive sentence is reduced from two years to nine months. Accordingly, he is sentenced to undergo simple imprisonment for nine months. With regard to the sentence of fine, no interference is called for since only the statutory minimum amount is fixed. But the default sentence is reduced from six months to three months only. Set off is allowed under Section 428 of the Cr.P.C. 8. From the records, it appears that the accused was under custody for 15 days as an under trial prisoner. The records further disclose that the accused was later arrested during the year 2007 and when the trial commenced on 3.1.2008, he was in custody. The sentence was ordered on 8.5.2008. If that be so, in the light of the modification effected with respect to the substantive sentence and default sentence and in view of the fact that set off is allowed under Crl.A.No.2720 of 2008 -:6:- Section 428 of Cr.P.C., the further imprisonment of the accused is not required. Therefore, there will be a direction to release the appellant/accused forthwith, if he is not required in any other case. Thus the appeal is disposed of confirming the conviction, but subject to the above modification with respect to the sentence. V.K.MOHANAN, JUDGE kvm/- Crl.A.No.2720 of 2008 -:7:- V.K.MOHANAN, J. CRL.A. No.2720 OF 2008 Judgment Dated:16.1.2009