IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 CRL.A.No. 810 of 2003() --------------------------------- SC.133/2003 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD .................... APPELLANT/ACCUSED: ---------------------------------- GURUVAPPA, S/O. ANGARA, THOTTATHODI, CHINGERPADA, MEENJA VILLAGE, KASARAGOD. BY ADV. MR.T.SETHUMADHAVAN MR.PUSHPARAJAN KODOTH MR.K.JAYESH MOHANKUMAR RESPONDENT/COMPLAINANT: -------------------------------------------- STATE OF KERALA, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/08/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. --------------------------- CRL.A.NO.810 OF 2003 ------------------------------ Dated this the 6th day of August, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed by the Additional Sessions Judge (Adhoc -I), Kasaragod in SC.No.133/2003. The accused was charge sheeted for the offence under Section 55(a) of the Abkari Act and was convicted there under and sentenced to undergo imprisonment for three years and to pay a fine of Rs. One lakh and in default to undergo further imprisonment for six months. It is against that decision, the accused has come up in appeal. 2. The points that arise for determination in the appeal are: (1) Whether materials available are sufficient to hold the accused guilty under Section 55(a) of the Abkari Act (2) In case of guilt, is the sentence imposed excessive? 3. Heard the learned counsel for the appellant and the Prosecutor. It is the case of the prosecution that on 6.5.2001 at about 6.20 p.m they had found the accused in possession of 280 bottles of Coconut Fenny and 240 bottles of Boss Whisky at Thottathadi in Meenja village. 4. PW1 is the officer, who had detected the crime. He 2 CRL.A.NO.810/03 had deposed before the court that on that day while they were on election duty, they got a reliable information that the accused is dealing with liquor and therefore proceeded and stopped the jeep 150 meters away from his house. When they reached near his house, they found the accused under a cashew tree with cardboard boxes. The cardboard boxes found therein were inspected and on examination it was found contained Coconut Fenny as well as Boss Whisky. The capacity of coconut fenny was 180 ml. Thereafter sample was taken from the bottles and later he was arrested. He had been cross examined at length but nothing has been brought out to discredit his evidence. 5. It is submitted that they had gone to the house of the accused after the seizure in order to find out the house number of the accused. It is also submitted that the accused attempted to run away but did not run. 6. PW2 is an independent witness who had turned hostile to the prosecution. PW3 is the person who had conducted the investigation, He submitted that he had conducted the investigation and submitted the charge. The documents 3 CRL.A.NO.810/03 produced in this case would show that Ext.P1 seizure mahazer was prepared then and there the accused was arrested and the articles were produced before the court on 7.5.2001 itself. There had been a forwarding note prepared and that the seals on the bottles were intact and found tallied with the sample seal provided. The chemical examiner’s report also revealed that the sample examined contained 40.81% and 41.10% respectively by volume of ethyl alcohol. The evidence makes it clear regarding the apprehension, seizure, arrest and other things. 7. Learned counsel for the appellant would submit before me that it is too artificial to believe that the police officials had taken the witnesses from 150 metres away of the house of the accused even while they were going for the search. It is nothing but natural when ever witnesses are available they are taken. But, unfortunately, in this case this witness had turned hostile. It has to be stated that it has become the habit in this type of cases that independent witnesses turn hostile. This position was considered by a learned Judge of this Court in the decision reported in Sivaraman v. State of Kerala (1981 4 CRL.A.NO.810/03 KLT SN Page 9 Case 17). In the above case the court held that if evidence of official witnesses is found to be intrinsically reliable and acceptable, then there is nothing wrong in accepting to arrive at a conviction on the basis of the same. Here, the investigation, search and seizure are done properly and materials clinch the factor that the accused was found in possession of Coconut Fenny and Boss Whisky and the samples taken were immediately produced before the court and sent for chemical analysis. 8. Therefore, the conviction under Section 55(a) is only to be confirmed and I do so. So far as sentence is concerned, the learned counsel would contend that the accused is in a very poor financial circumstance and he has got a family to be looked after and some leniency should be shown. Considering the quantity involved and the fact that it is Indian made foreign liquor, I am inclined to show some leniency by reducing the imprisonment of three years to 18 months and the default sentence to that of 3 months instead of 6 months. 9. In the result, the criminal appeal is disposed of as follows: 5 CRL.A.NO.810/03 1. The finding of guilt under Section 55(a) of the Abkari Act is confirmed. 2. The sentence is modified and the accused is sentenced to undergo 18 months R.I and to pay a fine of Rs.One lakh and in default of which to undergo further S.I for a period of three months. The accused is also entitled to get set off as contemplated under Section 428 of the Act. The lower court shall execute the sentence. M.N. KRISHNAN, JUDGE cl 6 CRL.A.NO.810/03 M.N. KRISHNAN, J. --------------------------- CRL.A.NO.810 OF 2003 ------------------------------ 6th day of August, 2009 JUDGMENT