IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 25TH FEBRUARY 2008 / 6TH PHALGUNA 1929 CRL.A.No. 1897 of 2003() ------------------------ SC.152/2003 of ADDL. SESSIONS COURT (ADHOC)II, THODUPUZHA .................... APPELLANT: 1ST ACCUSED: -------------------------------- RAJEEV, S/O. SASI, VETTUKALLIL VEEDU, KALKOONTHAL VILLAGE, IDUKKI DISTRICT. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT/COMPLAINANT: ----------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE SUB INSPECTOR OF POLICE, NEDUMKANDAM. BY PUBLIC PROSECUTOR SRI.AMJETH ALI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/02/2008, ALONG WITH CRA NO. 1933 OF 2003, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER,J ======================= Crl.Appeal.Nos.1897 & 1933 of 2003 ========================== Dated this the 25th day of February, 2008 JUDGMENT These appeals are at the instance of the two accused in S.C.No.152/2003 on the file of the Additional Sessions Judge (Adhoc) II, Thodupuzha. The trial court found the appellants guilty under Section 55(a) of the Abkari Act and they were accordingly convicted and sentenced to undergo rigorous imprisonment for four years each and to pay a fine of rupees one lakh each and in default to undergo simple imprisonment for two months each. The above order of conviction and sentence is under challenge in these two appeals. 2. The prosecution case in brief was that on January 11, 2002 at about 4.45 p.m. the Sub Inspector of Police Nedumkandam and his party had stopped a jeep bearing registration No.KLN 3130 near Karuna Hospital at Nedumkandam on receipt of information that arrack was being transported in the said vehicle. Accused No.1 was driving the vehicle and accused No.2 was sitting behind him. On a search made by the Sub Inspector, a plastic can having a capacity of 5 Crl.A.Nos.1897 &1933 of 2003 2 litres was found inside the jeep in the front platform. The can contained about 4 litres of a colourless liquid which on taste and smell was found to be arrack. Appellant No.2/Accused No.2 was found in possession of a bottle containing 375ml. of a similar liquid which again on taste and smell was found to be arrack. Two samples (180 ml each) were taken from the can and the bottles were sealed in the presence of witnesses. The accused and the witnesses had put their signature on the seal of the sample bottles. The bottle of liquor seized from the possession of accused No.2 was also sealed. The witnesses and accused No.2 had put their signature on the label. The accused were arrested and the contraband articles were seized. They were produced before the court on the next working day viz. November 14, 2002. Samples were sent for analysis to the chemical analyst who found that the liquid contained Ethyl Alcohol. Charge sheet was laid before the court after completing the investigation. 3. The prosecution examined PW1 to PW5 and Exts.P1 to P12 and MO1 and MO2 were marked. There was no oral or Crl.A.Nos.1897 &1933 of 2003 3 documentary evidence on the side of the defence. 4. PW4, the Sub Inspector and PW3 the Police Constable who accompanied him had deposed before the court that they had stopped the jeep which was being driven by accused No.1 and recovered the contraband. They also gave details of the procedure followed for seizing and sampling of the liquor. The testimonies of these two prime witnesses of the prosecution were found to be quite reliable and creditworthy by the trial court. I have also been taken through the depositions of these two witnesses. I do not find any reason to disbelieve their versions. PWs.1 and 2 who were cited as independent occurrence witnesses did not support the prosecution case. But these two witnesses admitted their signature in Ext.P1, Mahazer. It is true that they had a case that their signatures were obtained by the Sub Inspector in a blank paper. PW5 had conducted the investigation and laid the charge sheet before the court. In short, the prosecution had successfully proved that the accused were found in possession of illicit arrack. The trial court, in my view, was justified in holding the appellants guilty of the offence Crl.A.Nos.1897 &1933 of 2003 4 under Section 55(a) of the Abkari Act. Therefore, the order of conviction is liable to be confirmed. I do so. But in the matter sentence, the appellants are entitled to get leniency since only very small quantity (about 4.375 litres) was seized. 5. Having regard to the entire facts and circumstances, I am of the view that interest of justice will be met if the substantive sentence of four years each imposed on the appellants is reduced and modified. Therefore, in supersession of the substantive sentence imposed by the trial court on the appellants, they are directed to suffer rigorous imprisonment for four months each and to pay a fine of rupees one lakh each and in default to undergo simple imprisonment for two months each. The period of detention undergone by the appellants shall be set off. Appeals are allowed in part. A.K.BASHEER,JUDGE dvs