IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 CRL.A.No. 1731 of 2007() ---------------------------------- SC.278/2001 of ASSISTANT SESSIONS COURT, SULTHAN BATHERY .................... APPELLANT(S): ---------------------- AYYAPPAN, S/O. CHAKKI, C.NO.5202 CENTRAL JAIL, KANNUR BY ADV. MR.V.R. GOPU (STATE BRIEF) RESPONDENT(S): ------------------------ A.S.I. OF POLICE PULPALLI POLICE STATION, STATION CR.NO.148/00. BY PUBLIC PROSECUTOR MR.C.M. NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1731 OF 2007 ------------------------------ Dated this the 16th day of June, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence in S.C.No.278/2001 of the Assistant Sessions Judge, Sulthanbathery. The accused was charge sheeted for the offence under Section 58 of the Abkari Act and thereafter convicted him to undergo R.I for 2 years and to pay a fine of Rs.One lakh and in default, to undergo S.I for 6 months. It is against that decision, the appeal is preferred. As the appeal was forwarded to this Court from jail, a State Brief was appointed. 2. Heard learned Public Prosecutor as well. It is the case of the prosecution that on 21.6.2000 at about 11. 30 a.m at Electric Junction at Pulpally the accused was found in possession of 82 packets of 100 ml each Karnataka made arrack. He was searched, the arrack was seized, sample was taken and it was sent for chemical examination and thereafter the court proceeded against the accused with the materials on record. 3. PW3 is the Assistant Sub Inspector of Police, who had 2 CRL.A.NO.1731/07 conducted the investigation. PW6 is the main witness. He would depose that he along with the police constables had gone for patrol duty and at 11.30 a.m the accused was found in a suspicious circumstance. Thereafter, the police approached him, examined and recovered 82 packets of 100 ml each Karnataka made arrack. It is also deposed by him that 8 packets of arrack were taken for sample and it was sealed in two bottles. The remaining packets were also sealed and the case was registered. Thereafter, the property list along with the articles were produced before the court and the chemical examination also was done which would reveal that it contained ethyl alcohol to a percentage of 35.72. PWs 1 and 2 are independent witnesses and PW2 had admitted his signature in Ext.P1. PW1 is a police constable, who had accompanied the ASI, and he had also spoken in clear terms how the accused was apprehended, how the search was conducted and the samples were taken. He also speaks about the sealing of the sample. So, the evidence of PWs 1 and 6, who were the officers at that time, proves about the apprehension of the accused and seizing of 82 packets of 100 3 CRL.A.NO.1731/07 ml Karnataka made illicit arrack. The evidence of PWs 1 and 6 does not suffer from any serious infirmity as well. Therefore, I find that the accused had committed the guilt under Section 58 of the Abkari Act. The court below had granted the sentence of 2 years R.I and to pay a fine of Rs. One lakh and in default, to undergo S.I for 6 months. 4. After perusing the judgment and the appeal memorandum sent by the party directly, It can be seen that a large family is depending upon him for their livelihood and therefore, some indulgence or leniency has to be shown. Taking into consideration those aspects, I reduce the sentence of imprisonment from 2 years to 1 ½ years and the default sentence from 6 months to 3 months. 5. Therefore, the criminal appeal is disposed of as follows: 1. The finding of guilt under Section 58 of the Abkari Act is confirmed. 2. The sentence is modified and the accused is directed to undergo R.I for a period of 18 months and to pay a fine of Rs. 4 CRL.A.NO.1731/07 One lakh and in default of which, further S.I for a period of three months. Needless to say that he is also entitled to set of as contemplated under Section 428 of the Criminal Procedure Code. M.N. KRISHNAN, JUDGE cl 5 CRL.A.NO.1731/07 M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1731 OF 2007 ------------------------------ 16th day of June, 2009 JUDGMENT 6 CRL.A.NO.1731/07