IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 CRL.A.No. 512 of 2009(D) ------------------------------------- SC.179/2008 of ADDL. SESSIONS COURT (ADHOC), FAST TRACK COURT I, THRISSUR . C.P. NO.79/2005 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, WADAKKANCHERY. .................... APPELLANT(S): APPELLANT ----------------------- MOHANAN, S/O.RAGHAVAN, C.NO.6564, CENTRAL JAIL, KANNUR. BY ADV. MR.SUNIL J.[STATE BRIEF] RESPONDENT(S): RESPONDENT ------------------------- STATE OF KERALA. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.512 OF 2009 ------------------------------ Dated this the 18th day of June, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed under Section 55(b) of the Abkari Act. The appellant, who is the 2nd accused, has been convicted and sentenced to undergo R.I for a period of 4 years and to pay a fine of Rs. One lakh and in default to undergo S.I for a period of 2 months. The appeal was filed by the 2nd accused from jail and as directed by this Court, Adv. Sunil J. has been appointed as the State brief. 2. I have heard the learned counsel as well as the Public Prosecutor. The points that arise for determination are (1) whether the 2nd accused is guilty of the offence under Section 55(b) and (2) In that case, what is the proper punishment. 3. Points 1 and 2: It is the case of the prosecution that the Excise Officials were able to find both the accused in the case distilling illicit 2 CRL.A.NO.512/2009 arrack. According to the prosecution, on 26.3.2005 while the Excise Officials and patrol party reached near the forest junta situated on the eastern side of the building belonging to Beevathumma, the first accused was seen adjusting the fire for distillation of the arrack and the second accused was found removing some liquid from the vessel which was placed on the oven. The accused were apprehended, liquid was seized, arrest was effected and ultimately a charge was filed under Section 55(b) of the Abkari Act. Section 55 (b) of the Abkari Act is attracted if one is found manufacturing liquor or intoxicating drug. The evidence in this matter are that of PWs 1 to 4 of which PWs 1 and 4 are the official witnesses. PW1 is the Preventive Officer attached to the Pazhayannur Excise range and he had deposed before the court that when they reached near the place of incident, they were able to see the two accused distilling illicit arrack. It is stated that A2 was standing on the northern side and was removing water from the aluminum container and the first accused was seen removing the fire from the oven. Though these people 3 CRL.A.NO.512/2009 attempted to escape, they were caught hold of. PW4 had collected the samples of both the illicit arrack and wash and thereafter removed the vessels independently and had taken possession of the same and produced before the court. 500 ml of wash was taken as sample and 180 ml of illicit arrack was taken as sample. It is also deposed that the samples taken were properly sealed. The other vessels were also taken and they had been marked as MOs 1 to 9 in this case. Though PW1 has been cross examined at length, nothing is brought out to discredit his evidence. He had categorically denied that Ext.P1 mahazer was prepared from the excise office. PW4 is the Excise Inspector who had lead the patrol party. He had also deposed before the court that they had seen two persons distilling illicit arrack and one was removing water from the vessel placed on the top and other was trying to put out the fire. They were apprehended, searched and ultimately the illicit liquor was sealed and they were produced before the court and chemical examiner's report would reveal that both the samples contained ethyl alcohol by percentage. It has to be 4 CRL.A.NO.512/2009 remembered that there was no considerable delay in producing the material objects before the court. 4. It is true that PWs 2 and 3 had not supported the case of the prosecution. Under such circumstances, the court is only bound to consider the evidence of PWs 1 and 4. Being official witnesses, their evidence has to be meticulously scrutinized. I had gone through the evidence of PWs 1 and 4 and I find that their evidence is quite natural and it inspires confidence in me to hold that they are intrinsically reliable and inherently probable. The trial court has also considered the matter in the correct perspective and also had discussed it in detail. Therefore, I do not find any ground to set aside the decision of the court below. I also confirm the finding of these accused under Section 55 (b) of the Abkari Act. 5. Now turning to the question of sentence. The court below has sentenced the second accused also to undergo R.I for a period of 4 years and to pay Rs. One lakh as fine with default sentence of 2 months. At the time of awarding sentence, the second accused has stated that he has a large family to be 5 CRL.A.NO.512/2009 looked after and he has also to look after his sisters. Considering the financial position and the difficulties he has to face in life, I am inclined to reduce the sentence. I feel that justice can be met by awarding him imprisonment for 18 months and retaining the fine as well as the default sentence. 6. In the result, the criminal appeal is disposed of as follows: 1. The finding of guilt against the 2nd accused under Section 55(b) is confirmed. 2. The sentence is modified and the appellant/2nd accused herein is sentenced to undergo R.I for a period of 18 months for the offence under Section 55(b) and to pay a fine of Rs.One lakh and in default of which to undergo further imprisonment for a period of two months. A copy of this judgment also be forwarded to the jail, where the accused is undergoing the sentence for necessary action. M.N. KRISHNAN, JUDGE cl 6 CRL.A.NO.512/2009 M.N. KRISHNAN, J. --------------------------- CRL.A.NO.512 OF 2009 ------------------------------ 18th day of June, 2009 JUDGMENT 7 CRL.A.NO.512/2009