IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 CRL.A.No. 447 of 2003 -------------------------------- SC.NO.93/1999 OF ADDL.DISTRICT & SESSIONS COURT (ADHOC-I), PATHANAMTHITTA .................... APPELLANT/ ACCUSED: ----------------------------------- MOHANAN, S/O. VELAYUDHAN, THADATHIL VEEDU, MEKKOZHOOR WARD, MYLAPRA VILLAGE, KOZHENCHERRY TALUK. BY ADV. MR.S.SUBHASH CHAND. RESPONDENTS/ COMPLAINANT: ----------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, EXCISE RANGE OFFICE, KONNI. 2. THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR MR. C.M. NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 447 OF 2003 = = = = = = = = = = = = = = = Dated this the 17th day of August, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed by the Addl. District and Sessions Judge, Adhoc-I, Pathanamthitta in S.C.93/99. The accused was charge sheeted for offence u/Ss. 8 and 55(a) of the Abkari Act and was found guilty u/s 55(a) of the Act and convicted thereunder and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default to undergo further simple imprisonment for a period of six months. It is against that decision the accused has come up in appeal. 2. The points that arise for determination are: (1)Whether the materials are sufficient to convict the accused u/s 55(a) of the Abkari Act? (2) In case of guilt, is the sentence excessive? Crl. Appeal NO. 447 OF 2003 -:2:- Points 1 and 2: 3. Heard the learned counsel for the appellant as well as the Prosecutor. It is the case of the prosecution that on 17.2.1998 while PW3 and others were on patrol duty they found the accused with a plastic carry bag. He was apprehended and when it was examined it was found to contain 24 similar looking sealed plastic packets. One such packet was opened and it was tested by smell and taste and it was found to be illicit arrack. Thereafter that liquid was taken as sample in a bottle and it was sealed. The remaining 23 bottles along with the container was also tied and seized and it was produced before Court. Now the learned counsel for the appellant had argued the case elaborately on the following points. 4. There is no materials to prove that things had been done properly in this case. The evidence adduce by the official witnesses are unsatisfactory and therefore cannot be accepted and the prosecution has failed to prove that material objects had been properly sealed and produced before Court. 5. Let me first refer to the documentary evidence in this matter. Ext.P1 is the seizure mahazar. It would reveal Crl. Appeal NO. 447 OF 2003 -:3:- that the accused was found in possession of 24 packets out of which one packet was taken out and tested and thereafter in a 375 ml bottle it was taken as sample and sealed. Rest of the 22 packets were tied and sealed and when the accused was directed to put his seal he refused to do so. Ext.P3 is the occurrence report prepared on the basis of the same. Ext.P4 is the list of thondi articles produced before Court. It is seen produced on 17.2.98 itself and there is an office note which shows that out of the 24 packets two covers were empty and it is seen that there is some leakage. Therefore it was recommended to return it to the Excise officials for production until further orders. Ext.P2 is a report submitted by the Excise Inspector wherein he states that the sample was collected and out of the remaining packets, two packets did show tendency of leaking and it is opined by him that the packing is conducted in a unskilled manner. 6. Ext.P5 is the chemical examination report which would show that it was received as per the requisition of the Judicial First Class Magistrate, Pathanamthitta through one of the Excise Guard, Babu and what was received was a bottle containing 150 ml of clear and colourless liquid and that the Crl. Appeal NO. 447 OF 2003 -:4:- seal on the bottle was in tact and found tallied with the sample seal provided. The chemical analyst's report would reveal that the said liquid contained ethyl alcohol and it had 27.08% by volume of ethyl alcohol. 7. Now the learned counsel for the appellant would contend before me that there was leakage on the cover seized and only one cover has been alleged to be taken from him for the purpose of taking sample and therefore these are not leak proof methods to accept the case of the prosecution. She would also submit that the evidence of the official witnesses, PW3 and PW4 are not convincing in that regard. I had gone through the evidence of PWs.3 and 4. 8. PW3 is the excise Inspector who had conducted the search and had taken sample of the liquid possessed by the accused. He had deposed before Court that by taste and smell it was found to be alcohol and thereafter in a 375 ml bottle sample was taken and the other covers of 150 ml capacity also contained illicit arrack. He had been cross examined at length. But I do not find any material irregularities or contradictions in the evidence of these witnesses. It is true that two bottles were found to be empty by the Court officers when it was Crl. Appeal NO. 447 OF 2003 -:5:- produced before Court. The office itself has recorded that there was leakage and that is why office recommended the learned Magistrate to return the covers to the Excise officials for safe custody. It is submitted that only one packet had been opened and examined. Now it is a settled principle that when there are similar types of packets there is no imperative rule that sample should be taken from every packet and to be sent for chemical analysis. He had also stated that there was seal of CW1 and no label. PW4 is the circle inspector of police. He had deposed before Court that the accused was only having one hand and was possessing plastic cover in his left hand. He was apprehended and the covers were seized, sample was taken and sealed and produced before Court. It is also deposed by him though the accused was directed to put his signature he would submit that he had not signed it at all. In the cross examination it is submitted by him that requisition has been forwarded to the Court and that label has been pasted in MO1 and the accused and the witnesses had signed in that label and it is also submitted that in MO1 it is still seen, MO1 ...................................................................................” Crl. Appeal NO. 447 OF 2003 -:6:- It is also deposed by him that the marks of the seal affixed by him is seen in MO1. So now the learned counsel would contend that PW3 had stated that there was no label but says PW4 would state that there was a label. It has to be remembered that the incident took place on 17.2.1998 and the witnesses are examined after four and half years. PW4 then would depose that the label was there and it contains signatures of the accused as well as the witnesses and deposed before Court that the signature in MO1 is seen even at the time of the examination and that the mark of the seal is also visible in MO1. Just because PW3 had not given a version regarding the label that it does not mean that it is conflicting and it cannot be accepted at all. So the evidence of PW3 and 4 would convincingly establish the following. 9. That they have apprehended the accused, they had examined him and found out 24 packets of 150 ml illicit arrack out of which one packet was taken as sample put in a 375 ml bottle and had sealed it and had also taken possession of the remaining 23 packets tied it, sealed it and labeled it and produced it before Court on the very same day, i.e. on 17.2.1998. I think there is absolute compliance of the Crl. Appeal NO. 447 OF 2003 -:7:- procedural formalities as well in this case. 10. It is true that independent witnesses had turned hostile. In the decision reported in Sivaraman v. State of Kerala (1981 KLT S.N. Case No.17 page 9) the Court observed that independent witnesses are turning hostile for the reasons best known to them. The Court thereafter proceeded to consider whether in such circumstances the evidence of the official witnesses can be accepted. The Court only cautioned that the evidence of those witnesses had to be meticulously scrutinized and when on consideration it is found to be reliable and acceptable there is nothing standing in the way of the Court in accepting that evidence as well. So the evidence of PWs.3 and 4 is acceptable and they have no axe to grind against the accused. So as discussed by me earlier procedural formalities are properly complied with in this case and therefore the finding of guilt u/s 55(a) of the Abkari Act cannot be interfered with and it is sustained. 11. Now turning to the question of sentence. The Court below has convicted the accused and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default to undergo six Crl. Appeal NO. 447 OF 2003 -:8:- months imprisonment further. The accused was found to be in possession of 3.600 litres of arrack. When questioned u/s 313 he had submitted that he has got his wife and two children and aged mother to be looked after and there is no other source of income and therefore he should be a pardoned. Taking into consideration the quantum involved and the other circumstances of the dare consequence that may have to be faced by the members of the accused's family I am inclined to show leniency towards the sentence. I think justice can be met by directing him to undergo simple imprisonment for a period of four months and to pay a fine of Rs.1,00,000/- and in default to undergo a further imprisonment for a period of two months. In the result the Crl.Appeal is disposed as follows: 1) Finding of guilt u/s 55(a) of the Abkari Act is sustained. 2) The sentence is modified and the accused is sentenced to undergo simple imprisonment for a period of four months and to pay a fine of Rs.1,00,000/- and in default to undergo simple imprisonment of two months. Crl. Appeal NO. 447 OF 2003 -:9:- 4) The accused is entitled to entitled to set off as contemplated under S.428 Cr.P.C. 5) The lower Court shall execute the sentence. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 447 OF 2003 -:10:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 447 OF 2003 = = = = = = = = = = = J U D G M E N T 17th August, 2009