IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 27TH JUNE 2008 / 6TH ASHADHA 1930 CRL.A.No. 1062 of 2008() ------------------------ SC.270/2006 of SPL. COURT (NDPS ACT CASES), THODUPUZHA CP.5/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KATTAPPANA .................... APPELLANT: APPELLANT: --------------------------- CHANDRAN, C.NO.2552, CENTRAL PRISON, TRIVANDRUM. BY ADV. LEAN JOSE[STATE BRIEF] RESPONDENT: --------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR, SRI.GIKKU JACOB THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT, J. ----------------------------------------------- Crl.A. No. 1062 OF 2008 ----------------------------------------------- Dated this the 27th day of June, 2008 JUDGMENT Appellant in this appeal assails the impugned verdict of guilty, conviction and sentence imposed on him under Section 8 of the Kerala Abkari Act. The crux of the allegations is that he was found in possession of one litre of arrack on 29.04.04 in his house in the dining room. He has been sentenced to undergo RI for a period of six months and to pay a fine of Rs.1 lakh. In default, he has to undergo SI for a further period of three months. 2. PW1 is the officier who detected the offence. PW3 is an independent witness who had allegedly seen seizure of the contra band articles. PW2 is the Secretary of the Grama Panchayat who issued Ext.P4 which confirms the house number at which the seizure was affected. PW4 had conducted the investigation and had filed the final report. 3. When the accused denied the offences alleged against him, PWs 1 to 4 were examined and Exts.P1 to P12 were marked. MO1, the bottle in which the contra band article was recovered was also produced and marked. Ext.P1 is the FIR and P1(a) is Crl.A. No. 1062 OF 2008 2 the FI statement/suo motu report. Ext.P2 is the seizure mahazar attested by PW3. Ext.P3 is the seizure memo and Ext.P4 is the search memorandum. Ext.P5 is the property list. The other relevant documents are Ext.P11 residence certificate issued by PW2 and Ext.P12, the chemical examiner’s report. 4. The accused in the course of cross examination and when cross examined under Section 313 Cr.P.C, took the stand that the allegations are totally unjustified. Though in the course of cross examination no such specific case was taken, in the course of 313 examination, it was contended that, he was a sand mining worker and that he was caught by the Congress workers who assaulted him and produced him before police. No defence evidence was adduced. The learned judge came to the conclusion that it was safe to accept and act upon the oral evidence of PWs 1 and 3. The court found such evidence to be sufficient to justify the verdict of guilty and conviction. Accordingly, the learned judge proceeded to pass the impugned judgment. 5. Arguments have been heard. Learned counsel for the appellant contends that the oral evidence of PWs 1 and 3 must Crl.A. No. 1062 OF 2008 3 have been discarded by the learned judge. The counsel then submits that the sentence imposed is excessive. 6. I have considered the contentions raised. PW1 is a police official. In such capacity he is certainly interested in proper prosecution of the appellant. That circumstance by itself cannot persuade this Court to distrust PW1 or even to approach his testimony without any doubt or suspicion. The contents of the contemporary seizure mahazar Ext.P2 do also eminently support the oral evidence of PWs 1 and 3 which is prepared by PW1 and duly attested by PW3. PW3 has supported the prosecution case and has spoken about seizure effected by PW1. The evidence of PW2 and Ext.P11 residence certificate issued by him show that the house from which the seizure was allegedly affected stood in the name of the appellant herein. 7. I am satisfied that the court below has not committed any error in choosing to accept and act upon the oral evidence of PWs 1 and 3. PW1 or any other police official is not shown to have any motive ill will or animosity against the appellant. The oral evidence of PWs 1 and 3 are supported by Ext.P1(a) report as also Ext.P2 Crl.A. No. 1062 OF 2008 4 seizure mahazar. Though vague suggestions were raised in the 313 examination about the injury suffered by the accused, no such suggestion was ever made to PWs 1 and 3. I am satisfied in these circumstances that the verdict of guilty and conviction on the basis of the evidence of PWs 1 and 3 are absolutely justified. The court below committed no error in accepting and acting upon the oral evidence of PW1 and 3, duly supported by the contemporaneous document as also broad probabilities. 8. The evidence of PWs 1 and 3 when accepted safely establishes the offences committed under Section 8 of the Kerala Abkari Act. The only question that remains is about the sentence imposed. Leniency has been shown to the maximum extent possible by the learned Judge. RI for six months is the substantive sentence of imprisonment imposed. Statutory minimum amount of fine, i.e., Rs.1 lakh alone is imposed and default sentence is only SI for three months. In any view of the matter I am satisfied that the sentence imposed also does not warrant interference. 9. From the above discussions it is revealed that the Crl.A. No. 1062 OF 2008 5 appellant is not entitled for any relief in this case. This appeal only deserves to be dismissed. 10. In the result: i) The appeal is dismissed. ii) The impugned verdict of conviction and sentence is upheld. 11. Communicate the order to the court below and the prisoner through prison authorities forthwith. R. BASANT, JUDGE ttb Crl.A. No. 1062 OF 2008 6 Crl.A. No. 1062 OF 2008 7