IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 18TH DECEMBER 2008 / 27TH AGRAHAYANA 1930 CRL.A.No. 64 of 2004(A) --------------------------------- SC.360/2000 OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE (ADHOC) FAST TRACK COURT NO.1, MANJERI . ............................. APPELLANT/ ACCUSED : --------------------------------------- CHEKKUTTY, S/O. KILIKKATHADAYI VELLODAN VELAYUDHAN, CHEVAYUR AMSOM, VETTATHOOR DESOM, ERNAD TALUK. BY ADV. SMT.T.J.SEEMA RESPONDENTS/ COMPLAINANT & STATE : ---------------------------------------------------------------- 1. THE EXCISE INSPECTOR, MANJERI. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SMT. K.L. LAKSHMI RANI, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A.No. 64 /2004 ORDER ON CRL. M. APPL NO.418 OF 2004 IN CRL. APPEAL NO.64 OF 2004 DISMISSED 18/12/2008 SD/- V.K.MOHANAN, JUDGE /TRUE COPY/ P.A. TO JUDGE scm V.K. MOHANAN, J. ------------------------------ Crl. A.No. 64 of 2004 ------------------------------------ Dated this the 18th day of December, 2008 JUDGMENT This appeal is preferred by the sole accused in S.C No.360/2000 on the file of the Additional District and Sessions Judge (Adhoc) Fast Track Court No.1, Manjery challenging his conviction and sentence under Section 55(a) of the Abkari Act. 2. The prosecution case is that on 27/10/1997 at about 5.45 P.M, the accused was found in possession of 3 litres of illicit arrack in a white Can having capacity of 5 litres at Vettathur Desom and thereby committed an offence punishable under Section 55(a) of the Abkari Act. On the basis of said allegation, Crime No.24/1997 was registered in the Excise Range, Manjery. On completion of investigation, charge was laid before the Judicial First Class Magistrate Court, Malappuram, wherein C.P.No.55/2000 was instituted. Learned magistrate as per his order dated 31/10/2000 in C.P. No. 55/2000 committed the case to the Sessions Court. Sessions Court made over the case to the trial court for disposal. Crl. A.No. 64 / 2004 2 3. On appearance of the accused, charge was framed, which was read over and explained to him. He pleaded not guilty, which resulted in the further trial of the case, during which PWs 1 to 6 were examined and Exhibits P1 to P8 were marked from the side of the prosecution. M.O.1 Can was identified and marked as material object. The accused was questioned under Section 313 of Cr.P.C. and he denied all the incriminating circumstances came out in evidence. He took the stand of total denial. No evidence was adduced from the side of the accused. The trial court after considering the evidence of both prosecution as well as defence, came to the conclusion that the accused has committed the offence charged against him and accordingly he was convicted under Section 55(a) of the Abkari Act. Consequently, after hearing the accused, he was sentenced to undergo Rigorous Imprisonment for 5 years and to pay a fine of Rs.1,00,000/-. He was further directed to undergo Simple Imprisonment for a further period of one year, in case of default in the payment of fine amount. It is the above conviction and sentence challenged in this appeal. 4. I have heard learned counsel appearing for the appellant as Crl. A.No. 64 / 2004 3 well as the Public Prosecutor. 5. The main contention advanced by the counsel is that the M.O.1 Can was not seized from the appellant. Therefore, the appellant was falsely implicated by PW1. According to the learned counsel, the appellant was called upon to sign some papers by the Excise Party and as well as PWs 3 and 4 were asked to affix their signatures on some papers. It is also the case of the counsel that, in fact, the crime was registered against one Velayudhan and not against the appellant and it was Velayudhan, who was taken into custody along with the contraband articles. Thus accordingly, the accused is falsely implicated in the above crime. There is no independent evidence to corroborate the evidence of the witnesses. Therefore, according to the counsel, the conviction and sentence passed by the court is liable to be set aside. It is also the case of the counsel that M.O.1 which produced before the court did not contain any liquid. Therefore, the possibility of tampering cannot be proved. According to the learned counsel, the story of the prosecution that 2 litres and 625 ml of illicit arrack were evaporated, cannot be swallowed without a pinch of salt. Thus according to the Crl. A.No. 64 / 2004 4 learned counsel, the appellant/accused is entitled to get the benefit of doubt. It is also the case of the counsel that the sentence imposed is disproportionate and exorbitant. 6. Learned Public Prosecutor submitted that there was no serious attack from the part of defence against the seizure and to the evidence of the departmental witnesses. It is also submitted by the Public Prosecutor that points raised in this appeal has already been dealt with by the trial court and by assigning convincing reason, the trial court rejected those contentions and found that the accused is guilty of the charge levelled against him. Thus, according to the learned Public Prosecutor, no ground is made out to interfere with the order of conviction passed by the court below. 7. I have carefully considered the contentions advanced by both the counsel for the appellant as well as Public Prosecutor and also perused the evidence and materials on record. PWs.1 and 2 are the main official witnesses cited and examined by the prosecution to prove the allegation against the accused. PWs 1 and 2 in the depositions categorically stated that while they were on patrol duty Crl. A.No. 64 / 2004 5 along with Excise party around Cheruvayoor-Vattathur and while they were proceeding towards Mannattu side from Vettatur, the accused was found carrying M.O.1 Can in front of the tea shop, on the road side. On some doubt, the accused was intercepted and examined the contents of M.O. 1 Can by smelling and tasting and found that contents were illicit arrack. Thus, as per Exhibit P1 mahazar, the M.O. 1 Can and the contents therein were seized in the presence of independent witnesses and sample was drawn then and there. Though PWs 1 and 2 were cross examined, nothing was brought to disbelieve their version. It is true that the independent witnesses mainly PWs 3 and 4 were cited and examined to prove the seizure of sample of the illicit arrack, were turned hostile. It is to be noted that though PWs 3 and 4 were turned hostile, they have admitted their signature in Exhibit P1, mahazar. During admitting the signature in Exhibit P1 mahazar, they have also deposed that they put their signature in the presence of PWs 1 and 2 and the accused, at the place of occurrence. Normally, there is no legal bar to accept the evidence of official witnesses and to use the same to convict the accused. If evidence of such official witnesses are not free Crl. A.No. 64 / 2004 6 from contradiction or doubt, naturally the court will in loath accepting such evidence unless the same is corroborated from independent evidence. In the present case, absolutely there is no contradiction or infirmity or doubt regarding the veracity of the depositions of PWs.1 and 2. PWs 3 and 4 though turned hostile, deposed that they put their signature at the spot in the presence of accused as well as PWs. 1 and 2. Thus, the prosecution has succeeded in establishing and proving the seizure of illicit arrack about 3 litres from the possession of the accused. 8. One of the contentions taken by learned counsel for the appellant is that the contraband article was not seized from the possession of the accused, on the other hand the same was effected from the possession of one Velayudhan. The above submission was made on the basis of the name happened to be shown in Exhibit P1 and other documents. The explanation offered by PWs 1 and 2 is to the effect that the father's name of the accused is Velayudhan and while repeating the name of the accused in the documents, the name Chekkutty is omitted and it is only a clerical mistake. On perusal of Crl. A.No. 64 / 2004 7 Exhibit P1, which is a contemporaneous document, it can be seen that according to prosecution, the seizure was effected from the possession of Chekkutty, S/o. Velayudhan, the accused. It is also in evidence that the accused is the person taken into custody from the spot along with the contraband article. Evidence of PWs 1and 2 further show that it was the accused Chekkutty, who arrested from the spot with the contraband article and no person namely Velayudhan was arrested. The investigating officer, PW6 also deposed before the court that it was the accused, who arrested from the place while effecting the seizure. From the above materials and evidence, I am of the view that the contention regarding the identity of the accused is rightly dealt with by the court and no case is made out to take a different view in favour of the defence. 9. Another contention raised by the appellant/accused is to the effect that at the time of trial, M.O. 1 Can contained no contraband article namely illicit arrack. Therefore, it is the case of the appellant as well as his counsel that the prosecution has tampered with the evidence and therefore, accused cannot be convicted. From Exhibit P1, it is Crl. A.No. 64 / 2004 8 crystal clear that seizure was effected on 27/10/1997 at about 5.45 P.M. The place of occurrence is a remote village far away from the Excise Range Office and after the seizure of the contraband article, the Excise party reached in the Range Office and the articles were entrusted with the Excise Range Office. From there, on subsequent day along with the accused, the properties were produced before the court as per Exhibit P6 property list. In Exhibit P6, it is specifically mentioned that M.O.1 contained 2.62 ml of illicit arrack and the contraband article was received in the Magistrate Court as per Exhibit P6 property list and the same was approved by learned magistrate. In the juncture, it is relevant to note that the sample was drawn from the spot itself and the same was sent for chemical examination through the court and finally obtained Exhibit P8 chemical analysis report. Chemical analysis report also proves that one seized from the possession of the accused is illicit arrack. Till the time of committal i.e. on 31/10/2000 from the date on 28/10/1997, M.O.1 Can was kept in the committal court. Thereafter, M.O.1 can was sent to the various courts including the court of Sessions and finally to the trial court. There is evidence to show that Crl. A.No. 64 / 2004 9 cap of the Can was kept in tight and there was no lid in M.O.1 Can. It is also in evidence that the cap was tightened by inserting paper pieces, which might have been perished in the due course. It is also in evidence that the seal was intact and the same was not tampered at all. Therefore, in the above backgrounds, the trial court found that the liquid contained in the M.O.1 might have been evaporated because of its volatile nature. Thus, according to the trial court, no bonus can be given to the defence on that accord. I find no reason to take a different view deviating from the reasons and conclusion arrived at by the trial court. Therefore, the finding arrived at by the trial court that the accused has committed offence which charged against him deserves no interference and accordingly, the conviction is confirmed. 10. With respect to the sentence, the learned counsel submitted that even according to the prosecution the quantity alleged to have possessed by accused is only 3 litres of illicit arrack and he is not a habitual offender and he is now at the age of 56 years. Therefore, the counsel prays that lenient view may be taken. 11. On considering the above submissions on merit, I am of Crl. A.No. 64 / 2004 10 the view that certain modification can be brought with respect to the sentence. It is to be noted that the quantity involved in this case is about 3 litres of illicit arrack and at the time of trial, the accused was at the age of 51 years, now he crossed 56 years. Therefore, according to me imprisonment of one year is sufficient to meet the ends of justice. Therefore, the sentence of imprisonment is reduced into one year from 5 years. As the fine amount is fixed to the tune of minimum statutory amount, no interference is called for. But the default sentence is reduced from one year to one month. Set off is allowed under Section 428 of Cr.P.C. In the result, the appeal is devoid of merit and the same is dismissed, but subject to the above modification with respect to the sentence. V.K. MOHANAN, JUDGE scm