IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933 CRL.A.No. 1214 of 2003() ------------------------ SC.1190/2002 of III ADDL.SESSIONS COURT, KOLLAM .................... APPELLANT/ACCUSED: ------------------ REGHUNADHAN @ NADHAN, S/O. KUMARAN, CHIRAYIL PUTHEN VEEDU, THAZHUTHALA CHERRI, THAZHUTTALA VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.P.VIJAYA BHANU, SENIOR ADVOCATE SRI.TONY MATHEW RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR, REJI JOSEPH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.S.GOPINATHAN, J. ------------------------------ Crl.A. No. 1214 OF 2003 -------------------------------- Dated this the 16th day of November, 2011 J U D G M E N T ~~~~~~~ Appellant is the accused in Sessions Case No.1190/2002 on the file of the Additional Sessions Judge, Kollam. The Additional Sessions Judge by the judgment impugned dated 17.7.2003 found the appellant guilty for offence under Sections 8(1) and (2) of the Abkari Act. Consequently, he was convicted and sentenced to rigorous imprisonment for five years and fine of Rs. One lakh. Now this appeal. 2. The prosecution case is that, at 5.30 p.m., on 25.11.1999, while PW1, the Excise Inspector attached to Chathannoor Excise Range, moving on patrol duty along with PW2, a Preventive Officer and others found the appellant carrying 98 packets, each containing 150 ml of arrack, in a carry bag which was marked as MO3. The appellant was arrested. The contraband was seized for which Ext.P1 seizure mahazar was prepared. PW4, another Preventive Officer, was in charge of the office while PW1 was on patrol duty. Returning Crl.A.No.1214/2003 2 to the office, the material objects were handed over to PW4, who registered the case for which Ext.P2 occurrence report was prepared. The investigation was taken over by PW5, another Excise Inspector, who after completing the investigation, submitted the chargesheet. At the time of the seizure, four packets were taken in two bottles as sample and sent for chemical examination. The Chemical Examiner, by Ext.P3 report, certified that the sample contained 30.58% by volume of Ethyl Alcohol. PW3, an independent witness , didn't support the prosecution case. The appellant took a defence that he was falsely implicated at the instance of CW4, who was on logger heads with the appellant. DW1 was examined in support of the defence plea. According to the appellant, CW4 was a regular visitor of the house of his neighbour, Indira, who is a widow and regarding that there was some animosity. However, the learned Additional Sessions Judge didn't believe the defence evidence. 3. I have a careful scrutiny of the evidence of PWs 1 and 2 who had given evidence supporting the charge. They would depose abut the arrest and seizure. Material objects were also Crl.A.No.1214/2003 3 identified by them. Though PWs 1 and 2 were subjected to searching cross examination, no material was disclosed to disbelieve them. The learned counsel for the appellant pointed out that two packets from the contraband were seen missing. It is true that the very case of the PWs 1 and 2 is that 98 packets were seized and four packets were taken as sample. Then there would have been a balance of 94 packets. But, in the court, only 92 packets (MO2 series) were produced. That is not at all a reason to interfere with the conviction based upon the evidence of PWs 1 and 2. It was also argued by the learned counsel for the appellant that though the seizure was on 25.11.1999, the case was registered on the next day. Ext.P2 would show that the material objects and the documents were produced only at 8.30 p.m. In that event, if the case was registered only on the next day, that is not a reason to disbelieve the prosecution case. 4. Going by the impugned judgment, I find that the learned Sessions Judge had correctly appraised the evidence and arrived at a conclusion of guilt. The reasons stated by the learned counsel for the appellant is not at all sufficient to Crl.A.No.1214/2003 4 interfere with the conviction, which is based upon cogent evidence. The conviction under challenge is unassailable. The appellant is stated to be 61 years as on the date of crime and now he is 69 years old. Taking into account that he is a hexagenarian, I find that the appellant is entitled to a little leniency in sentence and that a substantial sentence of simple imprisonment for 9 months with the minimum fine imposed by the trial court would meet the ends of justice. In the result, the appeal is allowed in part. While confirming the conviction, the substantive sentence is reduced to simple imprisonment for 9 months. The fine imposed is sustained with a default sentence of simple imprisonment for six months. The under trial imprisonment, if any, shall be set off. Trial court shall see execution of sentence and report compliance. (P.S.GOPINATHAN, JUDGE) ps/17/11