IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN WEDNESDAY, THE 14TH DAY OF DECEMBER 2011/23RD AGRAHAYANA 1933 CRA.No. 336 of 2004 (A) SC.257/2001 of ADDITIONAL DISTRICT COURT (ADHOC), PATHANAMTHITTA APPELLANT/ACCUSED 1 SHIJUKUMAR, S/O.MURALIDHARAN, VELLAMKOLLIL VEEDU MANNADIKALAYIKKU PADINJARU KARA KADAMPANADU VILLAGE ADOOR TALUK. BY ADV.SRI.P.VIJAYA BHANU SMT.P.MAYA RESPONDENT/COMPLAINANT 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR, REJI JOSEPH THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.S.GOPINATHAN, J. ------------------------------ Crl.A. No.336 OF 2004 -------------------------------- Dated this the 14th day of December, 2011 J U D G M E N T ~~~~~~~ The Additional Sessions Judge (Adhoc-I), Pathanamthitta in Sessions Case No.257/2001 convicted the appellant for offence under Section 8 of the Abkari Act and sentenced to rigorous imprisonment for two years and a fine of Rupees One lakh with a default sentence of simple imprisonment for two years. Assailing the above conviction and sentence, this appeal is preferred. 2. Prosecution case in brief is that, on 13.6.1998, the appellant was found possessing 6 plastic packets each containing 150ml of arrack for the purpose of sale. PW1, the Preventive Officer attached to the Adoor Excise Range detected the same. He arrested the appellant and seized the contraband. Contents from one packet were taken as sample for analysis and sealed separately. Ext.P1 is the arrest memo and Ext.P2 is the seizure mahazar. PWs 3 and 4 are the attestors to Ext.P2. PW2 another Preventive Officer was accompanying PW1. The Crl.A.No.336/2004 2 material objects and thondi articles were produced before PW5, who in turn produced the appellant and material objects before the committal court. PW5, the Range Inspector conducted a part of the investigation. PW5 was succeeded by PW6, who completed the investigation and submitted the chargesheet before the Judicial Magistrate of the 1st Class, Adoor alleging the above said offence. On finding that the offence alleged is triable by a court of of session, by order dated 17.2.2001, the learned Magistrate committed the case to the court of session, Pathanamthitta. From there, it was made over to the Additional Sessions Judge. 3. Responding to the process issued, the appellant entered appearance and pleaded not guilty when the charge was framed and read over. Therefore, he was sent for trial. On the side of the prosecution PWs 1 to 6 were examined. Exts.P1 to P6, MOs 1 and 2 were marked. When the appellant was questioned under Section 313(1)(b) of the Code of Criminal Procedure after closing the evidence for the prosecution, he took a plea of total denial. No defence evidence was adduced. On appraisal of the evidence, the Additional Sessions Judge arrived Crl.A.No.336/2004 3 at a conclusion of guilt. Consequently, the appellant was convicted and sentenced as above. 4. I have heard Adv. Sri.V.C.Sarath, the learned counsel appearing for the appellant and Sri. Reji Joseph, the learned Government Pleader. Perused the judgment and the evidence on record. 5. PWs 1 and 2, the Preventive Officers attached to Adoor Excise Range, would depose that on 13.6.1998 while they were moving on patrol duty they found the appellant walking through Badamukku – Mannady road in Adoor Village with a red bag in his hand. Feeling suspicious, the appellant was intercepted and the contents in the bag was examined. It was noticed that the bag contained six plastic packets, each containing 150 ml of liquid. One of the plastic packet was opened and the contents was tested by smell and taste and convinced that it is nothing but arrack. Therefore, the appellant was arrested for which Ext.P1 arrest memo was prepared. The plastic bag along with the packets containing the liquid alleged Crl.A.No.336/2004 4 to be arrack was seized for which, Ext.P2 seizure mahazar was prepared. The contents in one packet was taken in a bottle as sample and sealed then and there. They produced the appellant along with the material objects before PW5. PWs 3 and 4, though they admitted their signature in Ext.P2, denied of witnessing the arrest or seizure. 6. PW5 would depose that on 13.6.1998 PWs 1 and 2 produced the appellant along with the material objects. Therefore, he registered a case as Crime No.25/1998 for which Ext.P3 occurrence report was prepared. The material objects and the thondi articles were produced before the Magistrate on the same day. Ext.P5 remand report would show that the appellant along with the material objects was produced before him at his residence at 5.15 p.m. Ext.P6 report of the Chemical Examiner would show that the sample contained 28.63% by volume of Ethyl Alcohol. The appellant has no satisfactory explanation as to how he got it. Since PWs 3 and 4 didn't support the arrest and recovery, I had a careful scrutiny of the evidence of PWs 1 and 2. Nothing is disclosed to disbelieve them Crl.A.No.336/2004 5 as rightly observed by the Additional Sessions Judge. There is no case that PWs 1 and 2 have got any axe to grind against the appellant so as to implicate him with a false case for a severe offence. Though the learned counsel for the appellant argued that there was delay in producing the material objects before the court, Ext.P5 would belie the argument. Nothing is revealed out to show that the material objects or sample were any way tampered so as to affect the core of the prosecution case or the credibility of Ext.P6 report. Such being the materials on record, I find that the learned Additional Sessions Judge had correctly appraised the evidence and rightly come to a conclusion of guilt. The conviction under challenge is unassailable. 7. Regarding sentence, according to the learned counsel for the appellant, the appellant is a first offender, aged 29 years and an autorickshaw driver and that having due regard to the quantity involved, the sentence awarded is harsh and exorbitant, I find some merit in the submission. Having due regard to the facts and circumstances of the case, I find that a sentence of rigorous imprisonment for six months with the minimum fine Crl.A.No.336/2004 6 imposed by the Additional Sessions Judge would meet the ends of justice. 8. In the result, the appeal is allowed in part. While confirming the conviction, the substantive sentence is reduced to rigorous imprisonment for six months. The fine imposed is sustained with a default sentence of rigorous imprisonment for six months. The trial court shall see the execution of the sentence and report compliance. The under trial imprisonment, if any, shall be set off. (P.S.GOPINATHAN, JUDGE) ps/17/12