IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 CRL.A.No. 1000 of 2009(D) ------------------------------------ SC.310/2007 of ADDL. SESSIONS COURT(AD HOC-II), THODUPUZHA. .......................................................................... APPELLANT(S): ----------------------- 1. BABY, C.NO.3731, CENTRAL PRISON, TRIVANDRUM-12. 2. PANKAJAKSHAN, C.NO.3730, CENTRAL PRISON, TRIVANDRUM-12. BY ADV. SRI.ADEEP ANWAR (STATE BRIEF) RESPONDENT(S): ------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. BY ADV.SMT.M.K.PUSHPALATHA, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.1000 OF 2009 -------------------------- Dated this the 14th day of July, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the conviction and sentence passed in S.C.310/07 of the Addl. Sessions Judge, (Ad hoc - II) Thodupuzha. Two accused namely, Baby and Pankajakshan were charge sheeted for the offence u/s.8(1) and (2) and u/s.55(g) of Abkari Act and both of them were convicted u/s.55(g) of Abkari Act and sentenced to undergo rigorous imprisonment for a period of 4 years each and to pay a fine of Rs.1 lakh each and in default to undergo simple imprisonment for 3 months each. It is against that decision the appellants have preferred this jail appeal and as they did not have a counsel to argue their case, Adv.Sri.Adeep Anwar was appointed as the State Brief. The learned counsel had elaborately argued the matter before me. The points that arise for determination are, 2 CRL.A.No.1000 OF 2009 1.Whether there are sufficient materials to hold that the accused have committed offence u/s.55(g) of Abkari Act ? 2.In case of guilt, whether the sentence awarded is excessive ? 2. Points 1 and 2 :- Heard the learned counsel as well as the prosecutor. It is the case of the prosecution that both the accused were found distilling illicit arrack on 16.10.95 at about 4 P.M. near the residential property of Olickal Govindan, situated on the northern side of Muthirapuzha. PW1 is an independent witness examined by the prosecution, to prove the case and PW3 is the Sub Inspector of police, who had detected and seized the material objects. PW1 one Jose, identifies both the accused and deposed that he knows both of them. He had deposed before the court that on 16.10.95, while he was standing on the road side he saw the police jeep coming and as per the direction of the police, he also proceeded and when they reached the place of incident, he 3 CRL.A.No.1000 OF 2009 was able to see a person sitting near the fire and another person holding a can. It is further deposed by him that, there was wash in a vessel. It is marked as M.O.1, steel can marked as M.O.2, a smaller vessel marked as M.O.3, a hose marked as M.O.4 and a plastic can marked as M.O.5, wherein the illicit liquid was collected. According to him from the M.O.5 liquid, two bottles of samples were taken and they were sealed and from M.O.1, 375 ml. each of wash was taken as sample and it was also sealed. He identifies one such bottle of arrack and wash as M.O.6 and M.O.7. His evidence is attempted to be tested by suggesting that, he had political enemity with the accused that had made him a witness. The contradictions pointed out are that, he would say that he had came on seeing the police but in the chief he would say that the police asked him to come down. These are all trivial contradictions, which does not cut at the evidence of the witness which is otherwise acceptable. PW3 is the Sub Inspector of police. He would depose that on information he had proceeded to the place and 4 CRL.A.No.1000 OF 2009 in the presence of PW1, had seen the accused distilling illicit arrack and one was sitting near the fire and the other was holding a can and that can contained illicit arrack and there was wash in the vessel. He also speaks about the sampling and sealing and his evidence is totally acceptable for the reason that it does not contain material contradiction at all. It is true that PW2 has turned hostile, but the reason for the enemity of PW1 against the accused suggested to PW1, is given a go-by when cross examination was done, of this witness. So the evidence of Pws.1 and 3 does not suffer from any infirmity and it would establish the fact that the accused were found distilling illicit arrack, as spoken to by Pws.1 and 3 when they went to the spot. In order to satisfy my conscience, I had perused the other documents as well, which would indicate that the material objects and the samples were produced before the court on the very next day with sample sealed and the forwarding note was also prepared immediately and given. The chemical examiners report would reveal that, 5 CRL.A.No.1000 OF 2009 one bottle contained 24.78% by volume of ethyl alcohol and the other bottle of wash of 0.93 %. It is also seen from that, the seal on the packets and on the bottles were intact and found tallied with the sample seal provided. So all the materials are in a proper order and therefore it is evident that the prosecution had succeeded in proving that the accused were manufacturing illicit arrack, which would attract an offence u/s.55(g) of Abkari Act. Therefore, I sustain the conviction. 3. Turning to the question of sentence. It is seen that the court below has convicted them to undergo 4 years imprisonment and also to pay a fine of Rs.1 lakh. I feel it is certainly on the higher side considering the quantum involved and other attending circumstances, I am inclined to show leniency by reducing the imprisonment to a period of 1 year and retaining the fine and default sentence. In the result the criminal appeal is disposed of as follows :- 1.The conviction u/s.55(g) of Abkari Act is upheld. 2.The sentence is modified and the accused are 6 CRL.A.No.1000 OF 2009 sentenced to undergo rigorous imprisonment for a period of 1 year each u/s.55(g) and to pay a fine of Rs.1 lakh each and in default to undergo simple imprisonment for a period of 3 months each. They are entitled to set off as contemplated u/s.428 of Cr.P.C. M.N.KRISHNAN, JUDGE ami.