IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 CRL.A.No. 726 of 2009(A) ------------------------ SC.459/2007 of ADDL. SESSIONS COURT (ADHOC-II), THODUPUZHA CP.92/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KATTAPPANA .................... APPELLANT:- --------------- SABU, C.NO.3360, CENTRAL PRISON, THIRUVANANTHAPUAM. BY ADV. MR. MANSOOR.B.H [(STATE BRIEF) RESPONDENT:- ----------------- STATE OF KERALA ADV. MR. B. JAYASOORYA, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. ------------------------------------------------------------- Crl. A No. 726 of 2009 ------------------------------------------------------------ Dated this the 21st day of December, 2009. JUDGMENT In this appeal preferred from the Central Prison, Thiruvananthapuram the appellant (Sabu) who was the accused in S.C. No. 459 of 2007 on the file of the Additional Sessions Court (Adhoc -II), Thodupuzha, challenges the conviction entered and the sentence passed against him for an offence punishable under Section 8(2) of the Kerala Abkari Act. 2. The case of the prosecution is that on 30.06.2007, at about 8.10 p.m., on the road near the Christian Church at Murikkattukudy in Kozhimala Kara of Idukki District, the accused was found selling illicitly distilled arrack in contravention of the provisions of the Abkari Act and he has thereby committed an offence punishable under Section 8(2) of the Abkari Act. 3. On the appellant pleading not guilty to the charge framed against him by the court below for offences punishable under Sections 8(2) and 55(i) of the Abkari Act, the prosecution was permitted to adduce evidence in support of its case. The Crl. A. No. 726/2009 : 2 : prosecution altogether examined 4 witnesses as P.Ws 1 to 4 and got marked 6 documents as Exts. P1 to P6 and 3 material objects as MOs.1 to 3. 4. After the close of the prosecution evidence, the accused was questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. 5. The court below did not record an order of acquittal of the appellant under Section 232 Cr.P.C. The appellant did not adduce any defence evidence when called upon to do so. 6. The learned Addl. Sessions Judge, after trial, as per judgment dated 23.10.2008 acquitted the appellant of the offence punishable under Section 55(i) of the Act, but convicted him of the offence punishable under Section 8(2) of the Abkari Act. For the said conviction, he was sentenced to rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- and on default to pay the fine, to undergo simple imprisonment for six months. It is the said judgment which is assailed in this appeal preferred from the Central Prison, Thiruvananthapuram. Crl. A. No. 726/2009 : 3 : 7. I heard Adv. Shri. Mansoor B.H., the learned counsel appearing for the appellant on State Brief and the learned Public Prosecutor, Shri. B. Jayasoorya. 8. The only point which arises for consideration in this appeal is as to whether the conviction entered and the sentenced passed against the appellant are sustainable or not. 9. The point:- PWs 1 to 3 are the independent witnesses cited by the prosecution to prove the detection, search and seizure. These witnesses turned hostile to the prosecution. PW4, the Sub Inspector of Police, Kattappana was the Detecting Officer. His evidence is to the following effect:- 10. On 30.06.2007, PW4 along with his police party was conducting law and order patrol duty at places called Kanjiyar, Murikkattukudy etc. While the police party reached the southern side of the cemetery of the Christian Church at Murikkattukudy, he got a credible secret information to the effect that a person by name Sabu of Karappara House was engaged in the illicit sale of arrack. Accordingly, PW4 along with his police party proceeded to the said spot at about 7.50 Crl. A. No. 726/2009 : 4 : p.m. On reaching the said spot, they came across the appellant holding a white jerry can of 5 litre capacity in one hand and a glass tumbler in the other. The appellant was restrained and the liquor found in the jerry can was tested by smelling and tasting the same to find that it was arrack. The total volume of arrack in the can was found to be about 3 litres. After drawing two samples each of 180 ml. in two separate bottles and sealing the same, PW4 arrested the accused and seized the contraband liquor and the sample bottles under Ext.P1 mahazar to which PWs 1 to 3 had affixed their signatures. The appellant along with the properties and the seizure documents were then taken to the Kattappana Police Station from where PW4 registered a case as Crime No. 380 of 2007 under Section 8(2) of the Abkari Act. Ext.P4 property list shows that the properties along with the samples were produced before the Judicial First Class Magistrate, Kattappana on 09.07.2007. The sample bottles were in a sealed condition on the date of their production. During the course of investigation, PW4 submitted the original of Ext.P5 forwarding note requesting the forwarding of one sample bottle to the Chemical Examiner for analysis. The said request was Crl. A. No. 726/2009 : 5 : complied with by the Magistrate by forwarding one sample bottle along with his covering letter dated 07.08.2007 to the office of the Chemical Examiner, Ernakulam. The sample was received by the Chemical Examiner with the seals-in-tact. On analysis, the sample bottle was found to contain 35.22 percent by volume of ethyl alcohol. 11. The learned counsel appearing for the appellant submitted that since all the three independent witnesses to the detection, search and seizure turned hostile to the prosecution and also since there is only the interested testimony of the Detecting Officer examined as PW4, it will be unsafe to convict the appellant. 12. I am afraid that I cannot agree with the above submission. It is true that the independent witnesses to the Mahazar had turned hostile to the prosecution. But, such disloyalty shown by independent witnesses is not uncommon to the courts trying such offenders. (vide Sivaraman v. State of Kerala – 1981 KLT SN 9). The testimony of PW4 is free from any doubt or blemishes. No sort of enemity or oblique motive has been attributed to PW4. Hence, his evidence regarding the Crl. A. No. 726/2009 : 6 : detection, search and seizure, is quite credible. The very fact that MO3 glass tumbler was seized from the appellant along with MO1 jerry can containing the bulk quantity of arrack as confirmed in Ext.P6 report, shows that the appellant was possessing the arrack for the purpose of sale. By virtue of prohibition contained in Section 8(1) of the Abkari Act, it was not permissible for the appellant to possess or carry arrack, whatever may be its quantity, since arrack has been totally banned in the State with effect from 03.06.1997. Hence, the court below was fully justified in recording an order of conviction under Section 8(2) of the Abkari Act and the same is hereby confirmed. 13. What now survives for consideration is the adequacy or otherwise of the sentence imposed on the appellant. The court below has imposed a sentence of rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/-. As observed earlier, arrack has been banned in the State with effect from 03.06.1997. There was, therefore, absolutely no justification for the appellant to carry any quantity of arrack. Here, he was found to carry three litres of arrack and the fact that MO3 glass tumbler was Crl. A. No. 726/2009 : 7 : seized from him shows that it was evidently intended for sale which is prohibited under Section 8(1) of the Abkari Act. It was noticing that this liquor has deleterious effect on the human system, besides breaking so many families, that the Government imposed the total ban on arrack in the State with effect from 03.06.1997. Having regard to the adverse effect of the drink on human beings and also having regard to the fact that the offence is punishable up to 10 years of imprisonment and a fine of Rs.2 lakhs, I am not persuaded to hold that the sentence imposed on the appellant is excessive or disproportionately harsh. Accordingly, the sentence imposed on the appellant is also hereby confirmed. In the result, this appeal is dismissed confirming the conviction entered and the sentence passed against the appellant. Dated this the 21st day of December, 2009. V. RAMKUMAR, JUDGE. rv Crl. A. No. 726/2009 : 8 : V. RAMKUMAR, J. ------------------------------------ Crl. Appeal No. 726 of 2009 ---------------------------------------- 21st day of December, 2009. JUDGMENT Crl. A. No. 726/2009 : 9 :