IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 CRL.A.No. 852 of 2008(B) ----------------------------------- SC.363/2006 of SPL. COURT (NDPS ACT CASES), THODUPUZHA .................... APPELLANT(S): ----------------------- MOHANAN, C.NO.2525, CENTRAL PRISON, TRIVANDRUM. BY ADV. SMT. SANGEETHA LEKSHMANA[STATE BRIEF} RESPONDENT(S): -------------------------- STATE OF KERALA, REPRESENTED BY A PUBLIC PROSECUTOR. PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.852 OF 2008 ------------------------------ Dated this the 8th day of July, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed by the Additional Sessions Judge/Special Judge for N.D.P.S. Act cases, Thodupuzha in S.C.No.363/2006. The accused was charge sheeted for the offences under Sections 55(a) and (1) and (2) of the Abkari Act and found guilty and was sentenced to undergo R.I for one year and to pay a fine of Rs. One lakh and in default, to undergo S.I for a further period of six months. It is against that decision, the accused has filed the appeal from jail where he is undergoing the sentence. As there was nobody to assist him, this Court directed the Registry the Registry to appoint a State brief and Smt. Sangeetha Lakshamanan was appointed as his counsel. Learned counsel for the appellant and the Prosecutor had been heard. 2. The points that arises for determination in the appeal are whether the court below was right in convicting the 2 CRL.A.NO.852/08 accused under Sections 55(a) and 8(1) and (2) of the Abkari Act (2) In case of guilty, whether the sentence awarded is excessive. 3. It is the case of the prosecution that on 4.3.2005 while the Sub Inspector of Police, Vandanmedu police station was on patrol duty, he got a reliable information that sale of illicit arrack was going on in the forest land situated in Chellarkovilmettu area, he proceeded to the place and found a person carrying a Can containing illicit arrack with a glass at bout 7 p.m. After questioning about the identity of the accused, the liquid inside the Can was tasted by smell and by taste, that was found to be illicit arrack. Thereafter, the Sub Inspector of Police took two bottles of sample of 180 ml capacity and it was properly sealed. It contained a slip with signatures of the witnesses, the Sub Inspector and the accused. The samples were shown as “S1 and S2” and the remainder was shown as “S”. Thereafter, the accused along with the articles were produced before the court and prosecution has been launched. The evidence in this matter 3 CRL.A.NO.852/08 really depends upon the acceptance of the credibility of the evidence of PW3. PW3 is the officer, who had conducted the detection and major part of the investigation. He had deposed before the court that on 4.3.2005 while he was on patrol duty along with CWs3 and 4 he got the information that the accused was selling arrack and thereafter he proceeded to the place and with the aid of the torch found the accused with a can on his hand. He had identified the accused. He would further depose that by taste and smell of the liquid it was found that illicit arrack. he had also spoken about the seizure about the same, notes from the pocket of the accused. Then he speaks elaborately about the sampling and sealing. He would say that sample was taken in two bottles of 180 ml capacity and how it was pasted with a bottle slip S1 and S2 and thereafter the materials were produced before the court. Though he has been cross examined nothing serious has been brought out to discredit his evidence. He had stated before the court that they had to walk a distance of about 50 meters and he was able to sight the accused from a distance of 10 4 CRL.A.NO.852/08 feet and that the accused was restrained with the aid of two police constables who had accompanied him. He would also depose that it was the station seal that was put. Nothing has been brought out to discredit his evidence regarding apprehension, seizure and proper sampling and sealing. It is true that PWs 1 and 2 did not totally support the case of the prosecution but on material aspects as observed by the court below there is evidence to connect it with the evidence of PW3. There has not been any delay in producing the sample and a perusal of Ext.P11 chemical analysis report would reveal that seals on the packet and on the bottle were intact and were found tallied with the sample seal provided. So, there cannot be any apprehension about any tampering of the sample as well. 4. I am conscious of the fact that when a conviction is to be entered on the basis of the testimony of the official witnesses, certain safeguards have to be there. Safeguards had been laid down by the courts and it is with the evidence of such witnesses should be scanned and meticulously scrutinized 5 CRL.A.NO.852/08 and court has to specifies its conscience regarding the intrinsic reliability and inherent probability of such evidence. There is nothing before the court to show that PW3 has any axe to grind against the accused and what he had done is all in the ordinary course of his official duty which is not tainted with any motive. So, the factum of the restrain, seizure and presence of ethyl alcohol in the liquid found in the possession of the accused would establish that he had committed the offence under Sections 55(a) and 8(1) and (2) of the Abkari ACt. The court obviously taking note of the fact that the same set of offences did not separately award punishment but punished him to undergo imprisonment for one year and to pay a fine of Rs. One lakh and in default, to undergo further imprisonment for six months. It is evident from the materials available before the court that this man had been undergoing the sentence from 17.1.2008 and that he is entitled to set off as he was in judicial custody from 5.3.2005 to 22.3.2005. 5. So far as sentence is concerned also, I do not find that the court has not been very severe considering the fact 6 CRL.A.NO.852/08 that he was found in possession of illicit arrack. So, I do not find any ground to interfere with the sentence portion also. Therefore, the criminal appeal fails and the same is dismissed. If the accused had already undergone the period of imprisonment as directed and if his detention is not necessary in any other case, he is to be released by the appropriate authorities. M.N. KRISHNAN, JUDGE cl 7 CRL.A.NO.852/08 M.N. KRISHNAN, J. --------------------------- CRL.A.NO.852 OF 2008 --------------------------- 8th day of July, 2009 JUDGMENT 8 CRL.A.NO.852/08