IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 CRL.A.No. 201 of 2003() -------------------------------- SC.117/2000 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD ........................................................................... APPELLANT(S): ACCUSED: ------------------------------------- PADMANABHA, S/O. JOGAPPA POOJARI, ERIYALA HOUSE, MEENAJ VILLAGE. BY ADVS. SRI.M.RAMESH CHANDER SRI.V.TEKCHAND RESPONDENT(S): COMPLAINANT: ------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. STATION HOUSE OFFICER, MANJESWAR POLICE STATION. BY ADV.SRI.C.M.NAZAR, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.201 OF 2003 -------------------------- Dated this the 8th day of July, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the conviction and sentence passed by the Addl. Sessions Judge, Ad hoc-I, Kasaragod. It is the case of the prosecution that the accused has transported and possessed 72 quarter bottles of Boss Whisky and 48 quarter bottles of A J Fenny and thereby had committed the offence u/s.55(a) of Abkari Act. The trial court on appreciation of the materials found him guilty and sentenced him to undergo rigorous imprisonment for a period of 3 years and to pay a fine of Rs.l lakh and in default to undergo further imprisonment for a period of 6 months. It is against that decision the accused has come up in appeal. The points that arise for determination are, 1.Whether the court below was right in convicting the accused u/s.55(a) of Abkari Act with the materials available on record ? 2 CRL.A.No.201 OF 2003 2.In case of guilt, whether the punishment is excessive? 2. Points 1 and 2 :- Heard the learned counsel for the appellant as well as the prosecutor. It is the case of the prosecution that at 10.30 A.M. On 10.6.98, the accused was found in possession 72 quarter bottles of Boss whisky and 48 quarter bottles A J Fenny. The witnesses to establish the case are Pws.1 and 4. PW1 is the person who had accompanied PW4 on the relevant date. He had deposed that while they were proceeding on law and order duty and when they reached near Kunjathur Bus stop, they found one person with a plastic sack and big-shopper. On feeling suspicious, he was intercepted and searched and it revealed that he had 72 bottles of 180 ml. of Boss whisky and 48 bottles of 180 ml. of A J Fenny. Two bottles each were opened, tasted and smelt and it was found to be liquor, for which the person did not have any authority to hold. He was arrested and produced before the court along with the report. He has been cross examined at 3 CRL.A.No.201 OF 2003 length and I do no find anything which goes to the root of the case in a contradictory nature. PW4 is the Sub Inspector of police and he had deposed in the same line as that of PW1. He had also spoken about the sampling and sealing and further investigation. In the cross examination also, he would depose that bottles were taken as sample. He would further depose that there was some delay in sending the sample and material objects to the court. Pws.2 and 3, the independent witnesses, as usual turned hostile. The major point canvassed before me by the learned counsel for the appellant is that, though the prosecution case is that the liquids were seized on 10.6.98 and it reaches the court on 28.11.98 and therefore the long delay which is unexplained should go to the benefit of the accused. It is a cardinal point which requires consideration before the court of law. Mere delay by itself will not be sufficient to hold that it is incorrect. The meticulous importance in abkari cases is that, the courts should be convinced that the samples were taken from the liquid possessed by the accused and it was those 4 CRL.A.No.201 OF 2003 samples that was produced before the court and sent for chemical analysis. In this case, along with the accused itself, all details regarding the seizure, the sampling etc. had been produced before the court, or in other words, the court is made aware of the particulars on the very next day after the alleged seizure. The learned prosecutor submits before me being the border district, large number of cases are apprehended and with the limitation of the staff and other difficulties there used to be some delay in producing the articles. Now if this court is satisfied that there was no possibility of tampering the sample, which is taken from the accused then the delay will not cause any prejudice to the accused. The court is informed about the way in which the sample is taken and sealed on the very next day. It is with the very same description and particulars, the thondi articles produced before the court though at a later point of time. The court had verified the same and received the same. Therefore the mere delay is not sufficient in this case to hold that the prosecution case is not true. Further Pws.1 and 4 had 5 CRL.A.No.201 OF 2003 spoken about the manner in which the accused was found, how he was apprehended and the seizure was made. The chemical analysis report would also convincingly show that the seal on each bottle was intact and found tallied with the sample seal provided. It is also established that it contains the volume as described in Ext.P5 of ethyl alcohol which is more than 41% in each bottle. So I am inclined to accept the prosecution case as done by the court below. So far as the official witnesses are concerned their evidence have been meticulously scanned and scrutinised and there is nothing in the way of accepting the same, as they were found to be reliable. They have also no axe to grind against the accused in this case. In border district, it has become a common practice of illicit transporting and sale of liquor and it requires a strong treatment. Therefore from the materials available I sustain the conviction u/s.55(a) of Abkari Act. 3. The learned counsel for the appellant then strongly contends that, leniency should be shown. After applying my 6 CRL.A.No.201 OF 2003 mind to the facts of the case, only a minimum leniency can be shown in this case, for the reason that the quantity is huge and therefore I am inclined to reduce the sentence to that of 2 years instead of 3 years and default sentence from 6 months to 3 months. In the result the criminal appeal is disposed of as follows :- 1. The finding of guilt u/s.55(a) of Abkari Act is confirmed. 2. The sentence is modified and the accused is directed to undergo rigorous imprisonment for a period of 2 years and to pay a fine of Rs.1 lakh, in default of which to undergo further rigorous imprisonment of 3 months. He is entitled to set off as contemplated u/s.428 of Cr.P.C. The lower court can take steps to execute the sentence. M.N.KRISHNAN, JUDGE ami.