IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 CRL.A.No. 320 of 2008() ----------------------------------- SC.1005/2003 of ADDL.SESSIONS COURT (ABKARI ACT CASES), KOTTARAKKARA ................................................ APPELLANT(S): ACCUSED NO.1: --------------------------------------------------- PETER @ PATHROSE, S/O. MATHEW UPADESI, CHARUVILA VEEDU, UMMANNOOR VILLAGE, KOTTARAKKARA TALUK. BY ADV. MR.S.RAJEEV RESPONDENT(S): COMPLAINANT: --------------------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. (CRIME NO.827 OF 2001 OF KOTTARAKKARA POLICE STATION) BY SR. PUBLIC PROSECUTOR MR. P. RAVINDRA BABU THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23/07/2009 ALONG WITH CRA.NO.445 OF 2008 AND CRA NO.702 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N.KRISHNAN, J ===================== CRL.A. Nos.320 &445/2008 & 702 OF 2009 ===================== Dated this the 23rd day of July 2009 JUDGMENT Crl.A.No.445 of 2008 is filed by the second accused through counsel, Crl.A.No.702 of 2009 is filed by the accused through jail and Crl.A.No.320 of 2008 is filed by the first accused . Both accused were tried for offences under the provisions of the Abkari Act and were convicted under Section 55 (a) r/w Section 8(1) and (2) of the Abkari Act. They were sentenced to undergo SI for 3 years and to pay a fine of Rs.1 lakh and in default of payment of fine sentenced to undergo SI for six more months. It is against that decision the accused have come up in appeals. 2. Heard the State Brief also at length so also the Prosecutor. 3. The points that arise for determination in these appeals are:(1) Whether the second accused can be found guilty for the offences punishable under Section 55(a) r/w Section 8(1) and (2) of the Abkari Act? Whether the first accused can be found guilty for the same offence? and (3) In case of guilt whether the sentence is excessive? 4. Points 1 to 3: All these points are answered together for CRL.A.320/08 & con.cases -:2:- convenience. It is the case of the prosecution that on 2.10.2001 at 11.15 a.m., the accused in furtherance of their common intention A1 was in possession of 6 litres of arrack and A2 with a drinking glass and they were found standing on the western side of the rubber plantation and thereby committed the offences alleged. The evidence in this matter consists of oral testimonies of Pws 1 to 5 and DW1. Exts.P1 to P6 and Mos 1 and 2 were marked. Ext.P1 is the seizure mahazar. A perusal of seizure mahazar would reveal that on 2.10.2001 the Sub Inspector of Police, Kottarakkara found that the first accused was holding a can with illicit arrack and the second accused was in possession of a glass and in the can there were 6 litres of arrack. Both of them were apprehended and the liquid was examined by taste and smell and it was revealed that there was alcohol and thereafter samples were taken in two bottles and it was sealed and the can and glass were also taken possession of. 5. Exts.P2 and P3 are the arrest memos and Ext.P4 is the first information report on the basis of which crime has been registered. Ext.P5 is the list of articles which would show that the contraband articles were produced before court on 9.10.2001. There was a direction to verify and receive the same. Ext.P6 is the chemical examiner's report which would reveal that one sample bottle was received and the seal on the bottle was in CRL.A.320/08 & con.cases -:3:- tact and it tallied with the sample seal provided. Ethyl alcohol was detected in the sample and had contained 32.03% by volume of ethyl alcohol. Pws 1 and 2 are two independent witnesses to the seizure mahazar. They had turned hostile virtually and they would say that he had signed in a blank paper. So they really don't support the prosecution. PW3 is the Sub Inspector of Police, who had detected the crime. He had deposed that they got reliable information that the accused were selling alcohol. Therefore they went to the place and found the first accused with a can and the second accused with a glass and the can contained 6 litres of arrack. He also speaks about the taking of sample and sealing the same. He also proved Mos. 1 and 2. He also deposed that the Station House Officer had filed a report that the can was destroyed by the fall of a tree on the police station. He had been cross examined at length and nothing has been brought out to discredit the evidence. PW4 is the Police Constable, who had accompanied PW3. He had also spoken about the apprehension of the accused, seizure of the liquid and arrest of the accused. He had also identified the material objects. In the cross examination to him also it is suggested that he is giving an artificial version. He had denied the same. He also speaks that A1 has got some physical disability. PW5 is the person who has conducted investigation and laid the charge sheet. He speaks about the chemical CRL.A.320/08 & con.cases -:4:- examiner's report. To him specific question is put that there is one Joy and there was some enmity between Joy and the accused. It is denied by him. 6. DW1 is the witness examined by the accused. He would depose that there was some enmity between one Joy and the accused and a case has been falsely registered against the accused and further that the first accused is a disabled person. Now the evidence on record was considered by the court below and the court came to the definite conclusion that there was no sale of arrack and therefore Section 55(i) is not attracted. It is an appeal filed by the accused. This Court is not incompetent to say about the correctness of the finding and therefore it has to be left there. But, when it is left there the consequence that will follow is that the benefit has go to the second accused. The second accused was found only with a glass and a glass can be only there for the purpose of sale. Though common intention is raised in the point no charge is framed under Section 34 IPC and therefore the accused were not called upon to answer the charge of a common intention. Admittedly the second accused was not found to be in possession of any illicit arrack and therefore conviction of him under Section 55(i) does not arise at all. 7.Now turning to the first accused. Learned counsel for the first accused very strongly contended before me that DW1 speaks about the CRL.A.320/08 & con.cases -:5:- enmity and the un-naturality of the evidence tendered, the delay in producing the sample, etc. had resulted in prejudice to the accused and therefore A1 should also be acquitted in this case. It is true that A1 is having some physical disability. But his own witness DW1 does not find it difficult to accept that he is capable of holding a can and a glass. No medical evidence is also available before court to prove about his illness. I am totally conscious of the fact that under Section 315 Cr.P.C. an accused cannot be compelled to let in evidence and the Court under Section 315(2) is prevented from commanding upon the non-production of the documents. But when a specific defence is set up which is only to the knowledge of the accused unless some materials are there, the court will not be in a position to appreciate especially in the back drop of the evidence of DW1. 8.Now turning to the other points. Pws 1 and 2 had not supported the case of prosecution. As stated in the decision reported in Sivaraman v. State of Kerala(1981 KLT SN Page 9, case No.17) for the reasons best known independent witnesses turn hostile to the prosecution. The court also considered the acceptability of the evidence of the official witnesses and held that if they are reliable on meticulous scrutiny, it can form the basis for a conviction. So it is in that background one has to CRL.A.320/08 & con.cases -:6:- analyse the evidence of PW3 and PW4. PW3 is the detecting officer. He deposed that he has no personal relationship with the accused, though it is suggested that he was interested in one Joy, who was a police constable. He had stated that how he proceeded to the place where the accused was found, how the first accused was found in possession of a can and how sample was taken. PW4 also supports the same version. Nothing has been brought out to discredit their evidence. Learned counsel would contend that though sample was taken on 2.10.2001, it was produced before court only on 9.10.2001. The peculiarity in this case was two samples were taken, they were sealed and description of the seal is also found in that seal. The material objects were produced before court. One sample was sent for chemical analysis and one has been retained and it has been produced before court as MO1. So the production of MO1, lends credence of the prosecution that there has been no material tampering with the sample. Further chemical analysis report shows that it was intact. The delay of 7 or 8 days in producing the material objects before court caused any prejudice to the accused. It is stated that for the sampling 200 ml. alcohol was taken whereas in the chemical analysis report, it is mentioned as 250 ml. The mere discrepancy in describing it as 250 ml will not loom large in a case of this nature. So, I am not prepared to accept that contention as well. Therefore CRL.A.320/08 & con.cases -:7:- there is candid evidence before court to show that the first accused was in possession of a can which contained illicit arrack. Therefore the finding against him cannot be disturbed. As stated by me earlier, as the second accused was found in possession of a glass and as the court below found that there was no evidence, it may not be proper to convict him under Section 55(a) of the Abkari Act, especially when the common intention is not put up to him for the purpose of trial. Therefore I find that A1 can be convicted for the offence under Section 55(a) and Section 8(1) and (2) and A2 has to be acquitted. 9. Now turning to the question of sentence. Learned counsel very strongly submits before me that A1 is a sick person and his health is deteriorating day by day. He also would depose that he is suffering from serious illness. The evidence of DW1 and even the evidence of the prosecution witnesses also suggests his illness. Therefore I feel this is a fit case where leniency has to be show as also taking into consideration of his age. I feel justice can be met by reducing the sentence of imprisonment to 3 months and to pay a fine of Rs.1 lakh and default sentence to one month. Therefore the Crl.Appeals are disposed of as follows: (1) The finding of guilt against the second accused is set aside and he is acquitted and set at liberty, he is not wanted in any other case.(2) The finding of guilt against CRL.A.320/08 & con.cases -:8:- the first accused is sustained. (3) The sentence is modified and he is sentenced to undergo SI for 3 months and to pay a fine of Rs.1 lakh and in default, he shall undergo further imprisonment for a period of one month. He shall be entitled to set off under Section 428 Cr.P.C. The court below shall execute the sentence. M.N.KRISHNAN, JUDGE Cdp/-