IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 CRL.A.No. 1039 of 2008() ------------------------ SC.652/2007 of ASSISTANT SESSIONS COURT, OTTAPPALAM .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- PAZHANI @ PANALI, S/O.NANJAN, CONVICT NO.5770, CENTRAL PRISON, KANNUR. BY ADV. SRI MANJU ANTONY (STATE BRIEF) RESPONDENT(S): --------------- STATE OF KERALA. BY PUBLIC PROSECUOTR SRI AMJAD ALI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A. No.1039 of 2008 ---------------------------------------------- Dated, 21st January 2009. JUDGMENT The first accused in S.C. No.652 of 2007 is the appellant. In this appeal from jail, he challenges the conviction under sections 8 (1) and (2) and 55(g) of the Abkari Act and the consequent sentence. 2. The prosecution case is that on 14.8.2006 at about 3.45 p.m.,when the excise party, led by the Excise Inspector, was on patrol duty and reached near the thodu about 300 metres away from Chenthumbi Ooru, three persons were found manufacturing arrack using wash and distilling utensils. The further case of the prosecution is that on seeing the excise party, the accused tried to escape and out of the 3 persons, two were intercepted and in the meanwhile the other one escaped. The two accused were arrested from the spot and the illicit arrack of 5 litres were seized. On the basis of the said allegation, crime No.7/2006 was registered in the Agali Excise Range for the offences under sections 8(2) and (2), 55(f) and 55(g) of the Abkari Act. After the investigation, a final report was filed in the court of the Judicial First Class Magistrate Court, Mannarkkad. By the proceedings dated 14.9.2007 in Crl.A.1039/08 -:2:- C.P.No.121/2007, the learned Magistrate committed the case to the Sessions Court, Palaghat from where the case was made over to the trial court for disposal. The accused, from the date of arrest, were in the custody and hence on production on warrant before the trial court, an Advocate was appointed under the Legal Aid Adalath scheme. Thus, the defence as well as the prosecution were heard and a formal charge was framed against the accused for the offences punishable under sections 8 (1) and (2) , Sec.55(f) and (g) of the Act which was read over and explained to the accused and they pleaded not guilty. Thereafter, the prosecution adduced evidence consists of oral testimony of PWs 1 to 4 and documentary evidence such as Exts.P1 to P5. M.O1(a) to M.O1 (g) material objects were identified and marked. The incriminating circumstances which brought out during the evidence of prosecution put to the accused under section 313 of Cr.P.C. and they denied the same. They took the stand of total denial. After the evidence, the trial court found that the accused are guilty for the offences punishable under sections 8(1) read with 8(2) and also Sec.55(g) of the Act. The trial court also found that the accused are not guilty for the offence under section 55(f) of the Act and they are acquitted of the said offence. The trial court sentenced the accused to undergo simple imprisonment for three years under section 8(1) read with 8(2) and also sentenced to undergo simple Crl.A.1039/08 -:3:- imprisonment for 3 years for the offence under section 55(g) of the Act. Besides the substantial sentence of imprisonment, the accused were also sentenced to pay a fine of Rs. 1,00,000/-(one lakhs only) each, in default, they are further directed to undergo simple imprisonment for six months. The substantial sentences are ordered to run concurrently. Set off is allowed under section 428 Cr.P.C. It is the above conviction and sentences challenged by the first accused from the jail. 3. As the appellant is undergoing imprisonment pursuance of the impugned judgment, and appeal is preferred from the jail, Adv.Sri Manju antony is appointed as State Brief to prosecute the appeal for and on behalf of the appellant. Thus I have heard the learned counsel appearing for the appellant as well as Sri Amjad Ali, the learned Public Prosecutor. 4. The prosecution mainly depends upon the evidence of PWs 1 to 3 to prove its case. PW1 is the Excise Inspector attached to the Agaly Excise Range who detected the crime. When PW1 was examined, he deposed that he along with other excise party was conducting patrol duty on 14.8.2008 in Puthur village in Mannarkkad taluk. According to him, when they reached Chenthumbi Ooru, they found two accused along with another making illicit arrack using wash and distilling implements on the bank of thodu passing through the forest area. According to PW1, Crl.A.1039/08 -:4:- out of the three persons who were engaged in distilling, they could arrest only the two accused and the other person ran away from the spot. Thus, according to PW1, the accused were arrested from the spot and the arrack, wash and distilling utensils were seized as per Ext.P1 mahazar. It is also deposed that samples of wash and arrack were separately drawn and sealed as per the details mentioned in Ext.P1 mahazar. Through PW1, Ext.P2 crime and occurrence report and Ext.P3 property list were proved. PW2 is another Excise Inspector who accompanied PW1 and involved in the detection of crime and arrest of the accused and seizure of the contraband article. He had deposed in favour of the prosecution in tune with the deposition of PW1. PW3 the Forest Watcher was also examined. Thus, the evidence of PW1 is fully corroborated and supported by the evidence of PWs 2 and 3. PW4 is the Excise Inspector who involved in the investigation and filed final report before the trial court. Besides the above documents, Ext.P4 scene plan and Ext.P5 chemical analysis report were also produced by the prosecution as documentary evidence. From the judgment it appears that there was no serious challenge against the evidence adduced during the trial and the trial court finally found that the accused is guilty of the offence under sections 8 (1) and 8(2) and Sec.55(g) of the Abkari Act. 5. The learned counsel appearing for the appellant submitted that Crl.A.1039/08 -:5:- the trail court judgment is not sustainable either on law or on facts. According to the learned Counsel, there is no independent evidence adduced by the prosecution to substantiate the case. Therefore, according to the learned counsel, if the interested versions of the official witnesses are excluded, absolutely there is no evidence to prove the prosecution allegation. Another contention taken by the counsel is that the accused persons are belonging to Scheduled Tribe and they are falsely implicated in the crime. It is also submitted by the learned Counsel that the prosecution has not produced any document showing the forwarding of the contraband articles and the sample for chemical analysis. Inviting my attention to Ext.P5 chemical analysis report, the learned Counsel submitted that in the said report, there is no opinion to the effect that the sample is illicit arrack. As there is no mention regarding the presence of ilicit arrack, according to the learned counsel, mere opinion of presence of ethyl alcohol cannot be treated as presence of illicit arrack since the presence of ethyl alcohol cannot be ruled out in Indian made foreign liquor. It is also argued by the learned counsel that the punishment is disproportionate to the allegation with respect to the alleged contraband article. Therefore, a lenient view may be taken in the matter of sentence. 6. The learned Public Prosecutor supporting the judgment of the trial Crl.A.1039/08 -:6:- court, submitted that the evidence of official witnesses are free from any doubt or infirmities or any discrepancies and therefore there is no bar in accepting their evidence even in the absence of corroboration from independent source. The learned Public Prosecutor also submitted that Ext.P1 is a contemporaneous document prepared by the Excise Officers who were participated at the time of the detection of the crime. In Ext.P1 all the details were given. After the arrest of the accused and seizure of the contraband article, the party returned to the Excise Range Office and registered the crime and without any further delay, the accused as well as the material objects and also the documents connected there with produced before the court below. Thus according to the learned Public Prosecutor, the finding arrived on by the court below is based upon cogent and acceptable evidence and no interference of this Court is warranted. 7. I have carefully considered the contentions advanced by the learned counsel as well as the learned Public Prosecutor. As pointed out by the learned Prosecutor, the evidence of PWs 1 and 2 regarding the seizure and arrest of the accused and the procedure adopted by them there is no ambiguity and discrepancies. So, the evidence of official witnesses can be safely acted upon. The learned counsel also pointed out that there is no independent witness to prove the occurrence. But PW3, the Forest Guard whose service was obtained by PWs 1 and 2 for Crl.A.1039/08 -:7:- witnessing the seizure and arrest etc. and therefore, it cannot be said that there is no independent evidence corroborating the evidence of official witnesses, viz., PWs 1 and 2. Simply because the accused are belonging to Scheduled Tribe, it cannot be said that the prosecution has falsely implicated them in the crime. Nothing discernible from the materials on record to show any animosity from the part of the officials against the accused. Ext.P5 report was obtained from the Chemical Analyst on forwarding the samples from the court to the lab for their examination and report. From Ext.P5 it is clear that the samples were received in the lab from the court through Excise Guard one Sri K.Basheerkutty. It is stated in Ext.P5 that the seals on the packets and on the bottles were intact and found tallied with the sample seals provided. Therefore, from the above materials, it appears that though the prosecution has not produced the forwarding note, the court sent the same for chemical analysis and obtained the report. The other contention raised by the learned counsel is that in Ext.P5 it is reported that ethyl alcohol was detected in both the samples and there is no positive report to the effect that illicit arrack or wash was detected. Going by Ext.P5 report, it can be seen that in item No.1 they have noted the percentage by volume of ethyl alcohol as 34.03. Item No.1 is one sealed packet having a sealed bottle containing 300 ml of clear and colourless liquid Crl.A.1039/08 -:8:- alleged to be arrack. The accused has no case that what recovered from the accused is other than arrack or ethyl alcohol. In the circumstances, I find no reason to interfere with the finding arrived on by the court below regarding the involvement of the accused and, hence, the order of conviction is approved. Regarding the sentence, the learned counsel submitted that a lenient view may be taken as the accused is belonging to Scheduled Tribe community who is illiterate and also on the fact that he did not involve in any other case similar to the present one. 8. Considering the above submission and particular facts and circumstances involved in the case, I am of the view that certain modifications can be effected with respect to the sentence. Accordingly, the appellant/accused is sentenced to undergo 2 years simple imprisonment under section 8(1) read with 8(2) of the Abkari Act and sentence of fine ordered by the court below under the above head is confirmed. But the default sentence is refixed as two months simple imprisonment. Similarly, under section 55(g) of the Act, the accused is sentenced to undergo simple imprisonment for a period of two years and the default sentence is refixed as two months. The substantial sentences under the above two heads are ordered to run concurrently. Set off is allowed under section 428 of Cr.P.C. Crl.A.1039/08 -:9:- 9. The records reveals that the accused was arrested on 14.8.2006, the date of the occurrence and thereafter he is under custody and same is continuing even after the pronouncement of the judgment. As the accused is under custody right from his arrest, and the substantial sentence is now modified as two years simple imprisonment under both the counts and the same are ordered to run concurrently and the default sentence is refixed as two months and set off is allowed, the appellant/accused need not be detained further and hence, he is entitled to be released from the jail. Therefore there will a direction to release the appellant/accused forthwith if he is not wanted in any other case. Accordingly the above Crl.Appeal is disposed of confirming the conviction but subject to the above modification with respect to the sentence. V.K.MOHANAN, JUDGE kvm/- Crl.A.1039/08 -:10:- V.K.MOHANAN, J. CRL.A. No.1039 OF 2008 Judgment Dated:21.1.2009