IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 CRL.A.No. 1586 of 2007() ------------------------ SC.888/2001 of ADDL.SESSIONS COURT-TRIAL OF ABKARI ACT CASES,NEYYATTINKARA CP.344/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT- II,NEYYATTINKARA .................... APPELLANT: APPELLANT -------------------- THANKAPPAN, S/O PALPILLAI, C.NO.9048, CENTRAL PRISON, TRIVANDRUM. BY ADV. KP HARISH[STATE BRIEF] RESPONDENTS: ------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J ---------------------- Crl.A.No.1586 of 2007 ---------------------------------------- Dated this the 12th day of June 2008 JUDGMENT In this appeal preferred by the appellant/accused through prison authorities he challenges the verdict of guilty, conviction and sentence imposed under Section 58 of the Kerala Abkari Act. The crux of the allegations is that on 10/1/2000 at 11.30 a.m, the petitioner was found to be in possession of 5 litres of arrack when an excise party led by PW3 intercepted him, arrested him and effected the seizure. 2. Cognizance was taken on the basis of the final report submitted by PW6. Accused denied the offence alleged against him and thereupon the prosecution examined PWs 1 to 6 and proved Exts.P1 to P10. PW1 is an attestor to the seizure mahazer Ext.P1 under which the seizure of the contraband article from the possession of the appellant was allegedly effected. PW1 did not support the prosecution case and turned hostile. PW3 is the detecting official and PW2 is an officer who accompanied him. Ext.P2 is the arrest memo. PW4 is the officer who registered the crime before whom PW3 had produced the Crl.A.No.1586/07 2 appellant after his arrest. Ext.P3 is the occurrence report; Ext.P4 the remand report and Ext.P5 the property list submitted to court. PW5 is the property clerk of the Magistrate court who allegedly received the property produced by the excise authorities in court under Ext.P5 property list. He had entered the same in the property register. Ext.P10 is the extract of the relevant page of the property register. Ext.P9 forwarding note was received from the excise officials and PW5 had drawn a sample of the contraband article from the quantity of contraband article which was available in MO1. Under Ext.P7, Ext.P9 forwarding note and the sample were forwarded to the chemical examiner along with Ext.P8 sample seal. Ext.P6 is the chemical examiner's report. PW6 had conducted the investigation and filed the final report. 3. The accused denied all circumstances which appeared in evidence against him in the course of cross-examination and later when examined under Section 313 Cr.P.C. No defence evidence was adduced. 4. The court below came to the conclusion that it was safe to place reliance on the oral evidence of PWs 2 and 3 who are officials of the excise department. Notwithstanding the Crl.A.No.1586/07 3 hostility of PW1, it was found that the evidence of PWs 2 and 3 about the recovery effected from the appellant under Ext.P1 seizure mahazer can safely be accepted. The learned Judge further came to the conclusion that notwithstanding the omission of PW5 to record in detail what transpired after Ext.P9 forwarding note was received, it is safe to come to the conclusion that the sample that was sent to the chemical examiner was the sample drawn from MO1 and that the chemical examiner's report can safely be accepted to be the report about the composition of the sample drawn from MO1. Accordingly, the learned Judge proceeded to pass the impugned judgment. 5. The learned counsel for the appellant assails the impugned verdict of guilty, conviction and sentence. The counsel first of all argues that the oral evidence of PWs 2 and 3 should not have been accepted and acted upon by the court below. They are interested, it is contended. Their evidence is not supported by any independent witnesses - PW1 having turned hostile. 6. I do not find much substance in this contention. PWs 2 and 3 are shown to be excise officials. They are officers of the Crl.A.No.1586/07 4 State. Merely because they are officers of the State and have roles to play in the detection of the crime, it would be unrealistic to categorize them as interested witnesses. They are not shown to have any interest against the appellant. There is no allegation even of any personal animosity, ill-will or malice for PWs 2 and 3 or any other excise officials against the appellant. It is the sublime public duty of all excise officials that they must detect the offences and bring the offenders to book. This duty which law imposes on them cannot, by itself, persuade a court to categorize them as interested witnesses and approach their evidence as though it is tainted by interestedness. Version of PWs 2 and 3 is supported eminently by the contents of the contemporaneous seizure mahazer Ext.P1 though PW1 has denied his signature in that document. Ext.P2 arrest memo, Ext.P3 occurrence report and Ext.P4 remand report do also support the oral evidence of PWs 2 and 3. Hostility of PW1 cannot persuade the court to come to any definite conclusion. Courts do come across hostile witnesses who with impunity speak untruth before court. A perusal of the oral evidence of PWs 2 and 3 clearly shows that not much significance can be attached to the hostility of PW1. As against the acceptable Crl.A.No.1586/07 5 evidence of PWs 2 and 3, the learned Judge was, according to me, eminently justified in not coming to any adverse conclusions on the basis of the hostility of PW1. 7. The oral evidence of PWs 2 and 3, experienced excise officials, do indicate that what was seized was arrack. We have also the chemical examiner's report Ext.P6 to confirm this aspect. The learned counsel for the appellant contends that the sampling has not been done properly. The oral evidence of PW5, the property clerk of the Magistrate's court becomes relevant on this aspect. He speaks about the reception of MO1 which was submitted under Ext.P5 and an entry being made on such receipt in Ext.P10 property register. He further speaks on receipt of Ext.P9 forwarding note and the procedure adopted by him thereafter. I have gone through the cross-examination of PW5. Not a semblance of material is there which can persuade this court to view the oral evidence of PW5, who is not shown to have any interest in the appellant herein, with any amount of doubt, distrust or suspicion. I am, in these circumstances, satisfied that the oral evidence of PWs 2 and 3 which is supported by the evidence of the expert in Ext.P6 chemical examiner's report can safely be accepted to come to the conclusion that the appellant Crl.A.No.1586/07 6 was carrying contraband liquor - arrack in MO1 at the time when he was arrested. 8. No other contentions are raised on merits. I am, in these circumstances, satisfied that the impugned verdict of guilty and conviction do not warrant interference at all. 9. The learned counsel for the appellant submits that at any rate the sentence imposed is excessive. The sentence of fine imposed is the statutory minimum and therefore there is no merit in the challenge against the sentence of fine. There is no minimum substantive sentence prescribed under law. A sentence of R.I for a period of three years is imposed on the petitioner as substantive sentence of imprisonment and a sentence of R.I for a period of six months is imposed as default sentence. The appellant is found to be involved in other similar offences. In any view of the matter, I am satisfied that there is merit in the contention of the learned counsel for the petitioner that the sentence imposed warrants interference. I am satisfied that a substantive sentence of R.I for one year and a default sentence of R.I for three months shall eminently serve the interests of justice. In the facts and circumstances of this case I take note of the advanced age of the appellant; I take note of the Crl.A.No.1586/07 7 total period of imprisonment which he has already undergone; I do further take note of the fact that the quantity of contraband article in this case is 5 litres only. 10. In the result, a) This Crl.Appeal is allowed in part. b) The verdict of guilty, conviction and the sentence of fine imposed on the appellant are all upheld. c) But the substantive sentence of imprisonment as also the default sentence are modified and reduced to R.I for one year and R.I for three months respectively. The records shall be sent to the court below forthwith along with the copy of the judgment. Revised warrant of commitment shall be issued by the court below immediately. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge Crl.A.No.1586/07 8 Crl.A.No.1586/07 9 R.BASANT, J Crl.A.No.675/2003 ORDER 09/06/2008