IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 19TH JUNE 2009 / 29TH JYAISHTA 1931 CRL.A.No. 1177 of 2003() ----------------------------------- SC.227/2000 of ADDL.SESSIONS COURT (ADHOC - I), KASARAGOD .................... APPELLANT(S): ACCUSED --------------------- BABU @ CLEMENT RODRIGS S/O. JACOB RODRIGS KOTTAKANI, KENTHALAM, MADHUR VILLAGE, KASARAGOD DISTRICT. BY ADV. MR.M.RAMESH CHANDER RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REP.BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1177 OF 2003 = = = = = = = = = = = = = = = Dated this the 19th day of June, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed in S.C.227/00 of the Addl. Sessions Judge (Adhoc-I), Kasaragod. It is the case of the prosecution that the accused on 8.8.98 at about 3 p.m. was found in possession of 18 liters of wash used for distilling arrack in a plastic can having a capacity of 20 liters. Therefore he was subjected to prosecution u/s 55(g) of the Abkari Act. The trial court on a consideration of the evidence of PWs.1 to 3, Exts.P1 to P5 and Mo1 came to a conclusion that the accused has committed the offence and therefore sentenced him to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/- and in default to undergo 6 months imprisonment more. It is against that decision the accused has come up in appeal. 2. The points that arise for determination are; (1)Whether there is sufficient materials to hold that the Crl. Appeal NO. 1177 OF 2003 -:2:- accused has committed the offence u/s 55(g) of the Act? (2) Whether the conviction and sentence requires interference? (3) What shall be the quantum of punishment? Points 1 and 2: 3. Heard the learned counsel for the appellant as well as the public prosecutor. The learned counsel for the appellant had argued that the prosecution is bad for the following reasons. According to him the only independent witnesses examined had turned hostile and there is only the evidence of the officials. The alleged Can which was marked as MO1 did not contain any liquid at the time of marking, it also should be viewed with suspicion. 4. PW1 is the Circle Inspector of Excise who had detected the offence. According to him when he was on patrol duty with his subordinates the accused was seen near in front of the building of one Stani with a plastic Can blue in colour. On seeing the officials he was frightened and thereafter he Crl. Appeal NO. 1177 OF 2003 -:3:- was restrained and the plastic Can was opened and examined. It contained about 18 liters of yellow liquid which was wash. The sample was also taken in 375 ml bottle and it was labeled and sealed. He had also identified the accused from the box. It is also his version that in MO1 Can there is a crack on the bottom as well as on the side and that wash was contained in the plastic Can at the time of production. The cross- examination has not brought anything which will make the evidence of PW1 unbelievable. To a suggestion whether this case is foisted on account of the influence of the toddy shop contractor is also denied. PW2, the independent witness, as usual had turned hostile to the prosecution. PW3 is Excise Range Inspector who had accompanied PW1 had also deposed before court the way in which they proceeded, how the accused was apprehended and liquid in MO1 Can was seized and examined. He has also spoken about the sealing of the material objects. So the evidence of PW1 and 3 does not contain any contradiction or exaggeration. They have only deposed before court what they had done. The only caution Crl. Appeal NO. 1177 OF 2003 -:4:- which the court has to take while relying on the evidence of official witnesses is to see that it is meticulously correct and intrinsically reliable. I do not find any contradiction which go against the prosecution in this case at all. The evidence of PW1 and 3 establish the fact that the accused was found with 18 liters of wash in a 20 liter Can. The chemical examiner's report also shows that it contained ethyl alcohol. 5. So far as the sampling and sealing is concerned the sample had been taken from the place of incident itself and it had been sent to the chemical examiner's laboratory which reveal that the said liquid contain ethyl alcohol. Therefore the materials only point out in one direction, that is the guilt of the accused. I do not find any ground to interfere with the conviction passed u/s 55(g) of the Abkari Act. Point No.3 6. This point deals with the quantum of punishment. The learned Sessions Judge had convicted him to undergo three years rigorous imprisonment with fine of Rs.1,00,000/- and the default sentence of 6 months. When questioned u/s Crl. Appeal NO. 1177 OF 2003 -:5:- 313 the accused had mentioned that he had four children to be looked after. Taking into consideration these submissions I think it is a fit case where the imprisonment can be reduced from three years to one year and default sentence from 6 months to 2 months. In the result the Crl.Appeal is disposed as follows. (1) Finding of guilt u/s 55(g) of the Abkari Act is confirmed. (2) The accused is convicted and sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- on default of which he is directed to undergo a further imprisonment of two months. (3) The accused is also entitled to set off as contemplated under law. M.N. KRISHNAN, JUDGE. ul/-