IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 5TH JANUARY, 2009 / 15TH POUSHA, 1930 CRL.A.No. 2446 of 2007 (SC.659/2003 of ASST.SESSIONS COURT (ABKARI ACT CASES), KOTTARAKKARA CP.151/2002 of JUDL.MAGISTRATE OF FIRST CLASS-III, PUNALUR) .................... APPELLANT: ------------------ THANKAPPAN, C.NO.2133, CENTRAL PRISON, TRIVANDRUM. BY ADV. GEORGE SEBASTIAN [STATE BRIEF] RESPONDENT: --------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR. PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.No. 2446 of 2007 --------------------------------------------- Dated this the 5th day of January, 2009 J U D G M E N T This is an appeal preferred by the sole accused in Sessions Case No.659 of 2003, challenging his conviction and sentence passed by the trial court by its judgment dated 14.9.2007 in the above case. 2. The prosecution case is that on 22.7.1999 at 7.15 p.m., the accused was in possession for sale and transit of 4 litres of arrack in a 5 litre white can through the canal road near toll station on the Kizhakketheruvu-Pathanapuram road at Kura and accordingly Crime No.66 of 1999 was registered in the Pathanapuram Excise Range. On completion of the investigation, a final report was filed before the Judicial First Class Magistrate Court-III, Punalur wherein C.P.No.151 of 2002 was instituted. As per the committal order dated 30.12.2002 in C.P.No.151 of 2002, the learned Magistrate committed the case to the Sessions Court from where it was made over to the Assistant Sessions Court, Kottarakkara. Thereafter, the case was transferred to the trial court for disposal. After hearing the accused as well as the Crl.A.No.2446 of 2007 :-2-: prosecution, a formal charge was framed for the above offence under Section 8(1) and (2) of the Abkari Act which was explained and read over to the accused who pleaded not guilty. Consequently, further trial was conducted during which PWs.1 to 4 were examined and Exts.P1 to P6 were marked from the side of the prosecution. No evidence either documentary or oral was adduced from the side of the defence. MOs.1 and 2 were produced, identified and marked. The defence took a stand of total denial. Finally, the trial court found that the accused is guilty of the charges levelled against him and accordingly, he was sentenced to undergo simple imprisonment for two years and to pay a fine of Rupees 1 lakh and default sentence is fixed as six months simple imprisonment. It is the above conviction and sentence challenged in this appeal by the appellant from the jail. 3. As the appellant is undergoing imprisonment pursuant to the impugned judgment and the appeal is preferred from the jail, a State Brief was appointed to prosecute the appeal. I have heard learned counsel appearing for the appellant/accused as State Brief and also the learned Public Prosecutor. 4. The prosecution case mainly reveals through the oral depositions of PWs.1 and 4. PW4 is the officer who detected the Crl.A.No.2446 of 2007 :-3-: offence. PW1 was along with PW4 at the time of detection of the case. PW4 deposed that on 22.7.1999 at about 7 p.m., when he was on patrol duty through Kizhakketheruvu-Pathanapuram road and when he reached at Kura about 100 metres southwards from the toll station, he and his party found the accused proceeding through the canal road towards the main road by holding MO1 jerry can at a distance of 50 feet away. PW4 stated that on seeing the Excise party, the accused attempted to go back, but he was intercepted and questioned in the presence of independent witnesses. PW4 says that the contents of the jerry can were identified as illicit arrack by smelling and tasting. Accordingly, the contraband article was seized and samples were drawn from the spot itself and the accused was arrested along with the contraband article from the spot itself as per Ext.P3 memo and Ext.P4 arrest intimation notice. Thereafter the contraband article and the accused were brought to the Excise Range Officer where Crime No.66 of 1999 was registered. Ext.P5 is the occurrence report in the above crime. The entire proceedings adopted by PW4 for the seizure of the contraband articles are well narrated in Ext.P1 mahazar. Ext.P6 is the property list. Exts.P3 to P6 are proved through PW4, the Crl.A.No.2446 of 2007 :-4-: detecting officer who laid the charge. A request was made before the court below for sending sample for chemical analysis, pursuant to which Ext.P2 chemical analysis report was obtained by which it is certified that the sample contains ethyl alcohol at 68.33% volume. When PW1 was examined, he had also stated in tune with the deposition of PW4. Though PW2, an independent witness was examined to prove the seizure, arrest etc., he turned hostile. The trial court found that though PW2 is an independent witness, as he is a neighbour of the accused and interested in the accused, turned hostile. Thus, the trial court, on finding that the entire evidence adduced by the prosecution are acceptable, entered into a conclusion convicting the accused for the charges levelled against him. 5. The learned counsel appearing for the appellant vehemently argued that the prosecution has miserably failed to establish the allegation against the appellant/accused. In support of the above submission, the learned counsel pointed out that while PW4 was examined, he had categorically stated that a label was pasted on the MO1 jerry can and at the time of the trial, no such label was seen on MO1 jerry can and therefore, the evidence of PW4 cannot be believed. It is also pointed out by the Crl.A.No.2446 of 2007 :-5-: learned counsel that in the property list also, there was no mentioning regarding the label etc. Therefore, the conviction is improper and the appellant is entitled to acquittal. 6. The learned Public Prosecutor opposed the submission and supporting the finding arrived on by the court below, argued that the accused was arrested from the spot along with the contraband article and on the next day, i.e. on 23.7.1999, the article along with list of property viz., Ext.P6 were produced before the court below and also the accused and it is from the court the sample was sent for chemical analysis report and EXt.P2 chemical analysis report confirmed the presence of ethyl alcohol in the can which was seized from the possession of the accused and therefore, the accused has committed the offence and no interference is called for. 7. I have carefully considered the contentions advanced by both the counsel for the appellant as well as the learned Public Prosecutor and also perused the records. This contention is not seen taken before the trial court. However, I have considered the contention as a point which has vital importance on the issue. The evidence of PWs.1 and 4 are in tact and though they were cross-examined extensively, nothing is brought to discredit their Crl.A.No.2446 of 2007 :-6-: version. From the evidence of PWs 1 and 4, it can be seen that the accused, on seeing the excise party, tried to escape from the spot, but he was intercepted and on examining the contents of the jerry can which was held by the accused, the detecting party realised that it was country made liquor. Thus, they arrested the accused from the spot itself along with contraband article and the seizure, arrest, sample etc. are supported by a contemporary document Ext.P1 mahazar. It is also proved by the prosecution that immediately on the arrest of the accused and the seizure of the contraband article, they produced the same before the trial court. Ext.P6 property list contained the endorsement of the learned Magistrate. It is true that MO1 jerry can, as per the endorsement contained in Ext.P6 property list, was returned to the Excise Party as there was no sufficient space in the court premises for its proper storage. In Ext.P1, there is no mentioning regarding the affixture of label on MO1 jerry can. It is true that when PW4 was examined, he had stated before the court that a label was affixed therein. The date of occurrence of the incident was 22.7.1999 and the trial had taken place after eight years. So when PW4 was examined, he might have stated so. But, in the facts and circumstances involved in the case, it cannot be said Crl.A.No.2446 of 2007 :-7-: that any prejudice is caused to the accused even if the label was not seen on EXt.P1 jerry can. It is also to be remembered that in Ext.P1 contemporary document, there was no mentioning about the affixture of label on MO1. Apart from that, as pointed out earlier on 23.7.1999, the accused as well as contraband article were produced before the court and the court accepted the article and the jerry can was returned to the Excise Guard for safe custody. It is also borne out from the evidence that the samples drawn on the spot were produced before the court on 23.7.1999 itself and it was sent for chemical analysis and Ext.P2 chemical analysis report was obtained which certified that the samples contained ethyl alcohol. Hence, no prejudice is caused to the accused. Therefore, the point raised by counsel for the appellant is not sustainable. There is no other ground to interfere with the order of conviction passed by the court below and accordingly, the conviction is confirmed. 8. Regarding the sentence, the learned counsel submits that even according to the prosecution, the quantity involved is only 4 litres of country liquor, but the sentence imposed is disproportionate to the alleged seizure and a lenient view may be taken in the case of sentence. It is also pointed out by the Crl.A.No.2446 of 2007 :-8-: learned counsel that the accused is convicted for the first time and he is not involved in any other case. 9. I have considered the above submission regarding the sentence. Considering the particular facts and circumstances involved in the case, I am of the view that certain modifications can be made with respect to the sentence. 10. Accordingly, the substantial sentence is reduced from two years to one year. Set off under Section 428 of Cr.P.C. is allowed. Since the fine awarded is the minimum amount fixed by the statute, no interference is called for. But the default sentence is reduced from six months to three months. Records show that the date of occurrence was on 22.7.1999 on which date itself the appellant/accused was arrested and he was released on bail on 8.9.1999. So as an under trial prisoner, he had undergone nearly 45 days. After the judgment, now he had undergone more than one year and three months. As the substantial imprisonment is refixed as one year, set off under Section 428 is allowed and the default sentence is refixed as three months, the appellant/accused is entitled to be released from jail forthwith. Therefore, there will be a direction to release the appellant/accused forthwith if he is not required in any other case. Crl.A.No.2446 of 2007 :-9-: Thus, the appeal is disposed of confirming the conviction, but with the above modification with respect to the sentence. V.K.Mohanan, Judge MBS/ Crl.A.No.2446 of 2007 :-10-: V.K.MOHANAN, JJ. -------------------------------------------- Crl.A.NO.2446 OF 2007 -------------------------------------------- J U D G M E N T DATED:5-1-2009 Crl.A.No.2446 of 2007 :-11-: V.K.Mohanan, Judge MBS/ Crl.A.No.2446 of 2007 :-12-: V.K.MOHANAN, JJ. -------------------------------------------- Crl.A.NO. OF 200 -------------------------------------------- J U D G M E N T Crl.A.No.2446 of 2007 :-13-: DATED: -12-2008