IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 CRL.A.No. 1058 of 2003() ----------------------------------- SC.413/2002 of IIIRD ADDL. SESSIONS COURT , THRISSUR .................... APPELLANT(S): ACCUSED --------------------- KUTTAN @ SUKUMARAN S/O. VASU, ATHRAPPILLY HOUSE, ENGAKKAD VILLAGE, THALAPPILLY TALUK, THRISSUR. BY ADVS.MR.ROBSON PAUL MR.C.D.DILEEP RESPONDENT(S): COMPLAINANT -------------------------- STATE- REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/07/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1058 OF 2003 = = = = = = = = = = = = = = = Dated this the 24th day of July, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed in S.C.413/02 of the 3rd Addl. Sessions Judge, Thrissur. It was a case charge sheeted u/s 58 of the Abkari Act. The accused was convicted and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for a period of three months for the offence u/s 58 of the Abkari Act. It is against that decision the accused has come up in appeal. 2. The points that arise for determination in the appeal are: (1) Whether the materials are sufficient to hold the accused guilty u/s 58 of the Abkari Act? (2) If case of guilt whether the sentence is excessive? Points: 3. Heard the learned counsel for the appellant as well as the Public Prosecutor. It is the case of the prosecution that Crl.A. 1058 OF 2003 -2- on 2.8.97 at about 6.45 p.m. while the Excise Officials were on patrol duty they found the accused carrying black Can in a bag and they intercepted and checked him and on examination it was found that he was carrying two liters of illicit arrack in a 5 liter Can. The liquid was tested by smell and taste and it was found to be illicit arrack. Thereafter sample was taken in a 180 ml of bottle and sealed. The remaining liquid was also sealed and it was proceeded further. The evidences in this matter who supports the prosecution are that of PWs.1 to 5. PW1 is the Excise Range Officer and PW5 is the Excise guard. PW1 has deposed that while they were on patrol duty they had found the accused with a plastic bag and on examination found it contained a Can of liquid which when tasted and smell found to be illicit arrack out of which 180 ml of sample was taken from the liquid and it was sealed and the remaining liquid was also sealed. It was also deposed before me that subsequently it had been produced before Court. Though he has been cross examined at length nothing has been brought out to discredit his evidence. PW5 is the other official witness who had prepared the scene mahazar. As per MO1 he had also deposed about the search, seizure, sampling, arrest etc. and he fully Crl.A. 1058 OF 2003 -3- supports the case of the prosecution. PW2 an independent witness though would depose that he had not seen the liquid which was taken from the accused. He was declared hostile but he would submit that he was never available in the scene of occurrence. Other official witnesses supported the prosecution for complying with the formalities. 4. I have also perused the property list which would indicate that the property was produced on the very next day and it had been sent for chemical analysis. The chemical analysis report would reveal that the seal on the bottle was in tact and found tallied with the sample seal provided. The sample contained 30.94% by volume of ethyl alcohol. So the evidence of PWs.1 and 5 coupled with the seizure mahazar reveal regarding the search, seizure, taking of sample and arrest. The seized articles were produced before the Court on the very next day in a sealed container which is also proved by the evidence of PWs.1 and 5. 5. The next point to be considered is the independent witnesses who turned hostile. So far as the turning of the independent witnesses as hostile, it is a regular practice and as has been observed by this Court as early as in the decision Crl.A. 1058 OF 2003 -4- reported in Sivaraman v. State of Kerala (1981 KLT S.N. Case No.17 page 9) that independent witnesses are turning hostile for the reasons best known to them and it was further held that the Court is competent to arrive at a finding on the basis of the evidence tendered by the official witnesses. But the Court added that the evidence of official witness should be meticulously scrutinized and the Court should be satisfied about its intrinsic reliability to arrive at a decision in the case. So it can be seen that evidences of PWs.1 and 5 are convincing. Therefore I do not find any error committed by the Court below and it has appreciated the materials on record correctly and arrived at a decision and therefore the conviction and sentence passed u/s 58 of the Abkari Act does not call for any interference therefore it is sustained. 6. Now turning to the question of sentence. The accused was found to be in possession of 2 liters of illicit arrack and he was convicted for one year rigorous imprisonment and to pay a fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for a period of three months. He is a person who is married and he has to look after his parents as well. He is only an ordinary labourer. It is Crl.A. 1058 OF 2003 -5- true that possession of illicit arrack is a social menace but at the same time considering the back ground of the person and the other attending circumstances I am inclined to reduce the sentence of imprisonment from one year to three months and the default imprisonment from three months to one month. In the result the Crl.Appeal is disposed of as follows. (1) The finding of guilt, conviction and sentence passed u/s 58 of the Abkari Act is sustained. (2) The sentence is modified and the accused is sentenced to undergo imprisonment for a period of three months and to pay a fine of Rs.1,00,000/- and in default of payment of fine to undergo a simple imprisonment for a period of one month. (3) He is entitled to set off as contemplated u/s 428 Cr.P.C. (4) The lower Court shall execute the sentence. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 1058 OF 2003 -6- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 1058 OF 2003 = = = = = = = = = = = J U D G M E N T 24th July, 2009