IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 11TH NOVEMBER 2008 / 20TH KARTHIKA 1930 CRL.A.No. 648 of 2008() ----------------------- SC.493/2006 of ADDL. SESSIONS COURT (ADHOC)-II, KALPETTA .................... APPELLANT(S): -------------- P.C.JOY, C.NO.5370, CENTRAL PRISON,KANNUR. BY ADV. SIJU.K. (STATE BRIEF) RESPONDENT(S): --------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI. GIKKU JACOB. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.A. No. 648 of 2008 ------------------------------------------------- Dated this the 11th day of November, 2008 JUDGMENT This appeal is preferred by the appellant against the verdict of guilty, conviction and sentence imposed on him by the learned Sessions Judge in a prosecution under Sec.55(a) of the Kerala Abkari Act. He faces a sentence of rigorous imprisonment for a period of two years and to pay a fine of Rs.1 lakh and in default, to undergo rigorous imprisonment for a further period of three months. 2. The crux of the charge against the appellant is that he was found to transport in his possession 39 packets of Karnataka arrack through the check post at Baveli at 8.40 a.m. on 30/3/06. He was intercepted by P.W.1 – an Excise official. P.Ws.2 and 4 are Sales Tax officials at the check post who had witnessed the occurrence and had signed Ext.P2 seizure Crl.A. No. 648 of 2008 -: 2 :- mahazar as attestors. P.W.3 is the Investigating Officer before whom the accused was produced after arrest along with the contraband article and the relevant documents. Cognizance was taken by the learned Magistrate on the basis of the final report submitted by P.W.3 after due investigation. The case was committed to the Court of Session and at the Court of Session charges were framed against the appellant. He denied the charges levelled against him and thereupon the prosecution examined P.Ws.1 to 4 and proved Exts.P1 to P7. M.Os.1 to 3 were marked. Altogether, there were 39 arrack packets, 37 of them are marked as M.O.2 series, two of them were opened and sample was drawn at the scene. M.O.3 series are the said empty packets. M.O.1 is a towel which was used by the accused to conceal the packets of arrack by tying them to his body using the said towel. I had already adverted to the nature of the oral evidence of P.Ws.1 to 4. Ext.P1 is the arrest memo; Ext.P2 is the seizure mahazar; Ext.P3 is the occurrence report; Ext.P4 is the property list; Ext.P5 is the forwarding note and the requisition; Ext.P6 is the Chemical Examiner's report and Ext.P7 is the scene mahazar prepared by P.W.3. 3. After the close of the prosecution evidence, the appellant was examined under Sec.313 Cr.P.C. In the course of Crl.A. No. 648 of 2008 -: 3 :- cross-examination and when examined under Sec.313 Cr.P.C., the accused denied all circumstances which appeared in evidence and which were put to him. No defence evidence was adduced. Exts.D1 and D2 were marked in the course of cross- examination of P.W.4. The appellant filed a statement in which also he denied all allegations against him. 4. The learned Sessions Judge, on an anxious consideration of all the relevant inputs, came to the conclusion that the oral evidence of P.Ws.1, 2 and 4 about the alleged seizure can safely be accepted. Accordingly, the learned Sessions Judge proceeded to pass the impugned verdict of guilty, conviction and sentence. 5. The appellant is in prison. The services of a State Brief counsel was made available to him. The learned counsel for the appellant has advanced his arguments. I have heard the learned Public Prosecutor also. The learned counsel for the appellant assails the impugned judgment on the following grounds: (i) The court below erred in accepting and acting upon the oral evidence of P.Ws.1 , 2 and 4. (ii) The court below ought to have held that the alleged seizure was not at a place within the State of Kerala; but outside the State – on the Karnataka side of the barricade. Crl.A. No. 648 of 2008 -: 4 :- (iii) There has been no proper sampling done by the Excise officials. (iv) The sentence imposed is excessive. 6. Coming to the first ground of challenge, we have satisfactory oral evidence of P.W.1 – an Excise official as also P.Ws.2 and 4 who are the officials at the sales tax check post at Baveli check post. The evidence of P.Ws.1, 2 and 4 clearly show the alleged seizure. I find no reason whatsoever to discard the oral evidence of P.Ws.1, 2 and 4. In fact, cross- examination of P.Ws.1, 2 and 4 do not at all reveal that they have any animus against the appellant or had any reason to falsely implicate him. Not even a suggestion is made as to why P.Ws.1, 2 and 4 must choose to speak falsehood against the appellant. The version of P.Ws.1, 2 and 4 is further corroborated by the contemporaneous documents - Ext.P1 arrest memo, Ext.P2 seizure mahazar and Ext.P3 crime and occurrence report. I am, in these circumstances, of opinion that there is no worth or merit in the challenge raised on the first ground. 7. A contention is raised that the seizure must have taken place outside the barricade and hence within the territory of the State of Karnataka and outside the territory of Kerala. No specific suggestion is seen thrown at P.Ws.1, 2 and 4 on this Crl.A. No. 648 of 2008 -: 5 :- aspect. The evidence is that the accused was walking towards the barricade when he was intercepted outside the barricade. The evidence clearly shows that the territory of Kerala does not commence at the Excise check post barricade and the barricade is within the territory of Kerala. I am, in these circumstances, satisfied that the second ground of challenge raised is also without any merit. The same cannot be accepted. 8. The third ground of challenge is about the sampling. The evidence clearly shows that two packets were broken open to ascertain the nature of contents. Sampling was done using the contents of such two packets. The empty packets are produced as M.O.3 series. The evidence of P.W.1 and Ext.P2 seizure mahazar clearly show that the contraband article from the two packets were taken in a sample bottle and that was also seized under Ext.P2. A contention is advanced that the said bottle may have been impure and that may have affected the result of the chemical examination. P.W.1 is the Excise official. He has stated clearly that the contents of the packet was arrack. P.Ws.2 and 4 have also supported that version. P.W.1 in his evidence stated that the bottle that was used was rinsed with the contents of the contraband article seized before the sample was poured into the sample bottle. I do not, in these Crl.A. No. 648 of 2008 -: 6 :- circumstances, find much merit in the contention that the sample bottle was not clean or dry and such inadequacy has affected the sampling done and the later analysis by the expert.. 9. No other ground of challenge is raised. I am satisfied that on the grounds referred above, the verdict of guilty and conviction do not warrant interference at all. 10. That takes me to the last contention that the sentence imposed is excessive. The total quantity of contraband liquor is 3.9 litres. The appellant is not shown to have any criminal antecedents also. The learned counsel submits that the appellant remains in custody from the date of the judgment. According to the learned counsel for the appellant, the appellant was in custody pending investigation/trial also for some period of time. It is, in these circumstances, prayed that leniency may be shown on the question of sentence and it may be ensured that the appellant is not obliged to continue in custody any longer. The sentence imposed may be modified and reduced, it is prayed. 11. The appellant is shown to be aged 64 years also. Taking note of the totality of circumstances, including the quantity of the contraband liquor involved as also the period of incarceration pending investigation/trial of the appellant, I am satisfied that a lenient view can be taken on the question of Crl.A. No. 648 of 2008 -: 7 :- sentence. The sentence can be suitably modified and reduced. I note that the sentence of fine imposed is the minimum that can be imposed under law. 12. In the result: (a) This appeal is allowed in part. (b) The verdict of guilty and conviction of the appellant under Sec.55(a) of the Abkari Act are upheld. (c) But the sentence imposed on the appellant is modified and reduced. The substantive sentence of rigorous imprisonment for a period of two years is modified and reduced from two years to a period of one year. The fine and the default sentence imposed – fine of Rupees one lakh and rigorous imprisonment for a period of three months, are upheld. 13. A copy of this judgment shall be communicated to the court below and the prison authorities forthwith. If the appellant has already served the modified sentence hereby imposed and his further detention is not required in connection with any other case, he shall forthwith be released from custody. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.A. No. 648 of 2008 -: 8 :- R. BASANT, J. -------------------------------------------- CRL.A.NO.648 OF 2008 -------------------------------------------- JUDGMENT 11th NOVEMBER, 2008 Crl.A. No. 648 of 2008 -: 9 :-