IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 21ST JANUARY 2008 / 1ST MAGHA 1929 CRL.A.No.1403 of 2007(A) ------------------------------- SC.1358/2003 OF ADDL. SESSIONS JUDGE (ABKARI CASES), KOTTARAKKARA. CP.114/2003 of JUDL.MAGISTRATE OF FIRST CLASS-I, PUNALUR .................... APPELLANT: -------------- THULASEEDHARAN,C.NO.1863, CENTRAL PRISON,TRIVANDRUM. BY ADV. ADV.K.K.RAJEEV(STATE BRIEF) RESPONDENT: ---------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.1403 of 2007 ------------------------------------------------ Dated this the 21st day of January, 2008 JUDGMENT Convict Number 1863, Thulaseedharan of Central Prison, Thiruvananthapuram has filed this appeal from jail challenging the conviction and sentence passed against him under Section 8(1) and (2) of the Abkari Act by the Additional Sessions Judge (Abkari Cases), Kottarakkara vide judgment dt.12/06/07 in S.C.1358/03. On conviction he was sentenced by the court below to undergo rigorous imprisonment for a term of three years and to pay a fine of Rs.1 lakh and in default to undergo rigorous imprisonment for a further term of three months. 2. The prosecution case is that at about 2.00 p.m on 15/08/99, the appellant was found in possession of for sale and in transit five litres of arrack in a white jerry can at Crl. Appeal No.1403 of 2007 -2- Podiyattuvila on the Kaithakkadu-Punnackadu road from where the lane proceeding to Kokkadu paddy fields starts, by PW2 the Preventive Officer attached to Punalur Excise Range and party. Consequent on seizure of arrack preparing Ext.P1 mahazar in that behalf attested also by PW1, the appellant was arrested preparing Ext.P2 arrest memo in that regard and issuing Ext.P3 intimation of arrest to the mother-in-law of the appellant and taking sample of 300 ml. of arrack in a 375 ml. bottle from the contents in MO1. Thereafter, investigation in the case was conducted by CW8 the Excise Inspector of Anchal and after him the investigation was continued by PW4 who was the successor in office of CW8. On completion of investigation, PW4 laid charge against the appellant before the Judicial First Class Magistrate's Court-I, Punalur. On committal of the case to the Crl. Appeal No.1403 of 2007 -3- Sessions Court, Kollam it was made over to the Assistant Sessions Court, Kottarakkara and thereafter, as per the order of the Sessions Court it was transferred to the Additional Sessions Court (Abkari Cases) Kottarakkara. 3. The appellant/accused was in custody. On production of the appellant in the court below pursuant to issuance of production warrant, the court below heard the prosecution and the defence and framed charge against the appellant for offence under Section 8(1) and (2) of the Abkari Act; read it over to him and explained it to him and questioned him. Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted by the court below. 4. Prosecution examined PWs.1 to 4; got marked Exts.P1 to P7 and got identified MO1. On the prosecution closing their evidence, the appellant was questioned under Section 313 Crl. Appeal No.1403 of 2007 -4- Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. However, he did not adduce any evidence in defence. 5. The court below considered the case in the light of the evidence adduced as aforesaid; found the appellant guilty of the offence punishable under Section 8(1) and (2) of the Abkari Act; convicted him thereunder and sentenced him as already stated. Hence, this appeal by the aggrieved appellant. 6. As the appellant had not engaged a lawyer of his choice, Advocate Sri.K.K.Rajeev was appointed on State Brief to argue the appeal on behalf of the appellant. 7. Heard arguments of counsel on State Brief and the Public Prosecutor. 8. It is vehemently contended before me by the counsel on State Brief on behalf of the Crl. Appeal No.1403 of 2007 -5- appellant that there is no convincing evidence to establish the guilt in the accused as the one and only independent witness examined as PW1 has turned hostile; that the testimony of the official witnesses cannot be relied upon for the purpose of entering into a conviction of the appellant; and that in any event, the contraband was not produced before court forthwith and for all those reasons the appellant has to be granted benefit of doubt and a consequent acquittal. 9. It is true that PW1 the attestor to Ext.P1 seizure mahazar has turned hostile. All the same, he has admitted that he has signed in Ext.P1 mahazar as witness and that it was he himself who has given his name and address to be mentioned in Ext.P1. However, his testimony goes to show that he was aware that he was affixing signature in a mahazar prepared by the excise officials. His further Crl. Appeal No.1403 of 2007 -6- statement that he did not see arrack being recovered cannot be taken at face value. On the other hand, his testimony goes to show that the excise officials have prepared Ext.P1 mahazar effecting seizure of arrack and that was got attested by him. 10. PW2 who was the Preventive Officer of Anchal Excise Range is the detecting officer in the case. According to him, at about 2.00 p.m on 15/08/99 himself along with the excise party accompanying him was proceeding from East to West along the Kaithakkadu-Punnackadu road in Podiyattuvila muri at Arackal and when they reached the place, Kariyara they saw the appellant standing by the side of the road with a white jerry can at the place where the lane to Kokkadu paddy fields starts and on seeing the excise party, he attempted to take to his heels; that on feeling suspicion they intercepted him; obtained possession of the Crl. Appeal No.1403 of 2007 -7- plastic can from him and examined its contents and thereupon, they were convinced that the can contained arrack and consequently, the appellant was arrested at the spot preparing Ext.P2 arrest memo and giving Ext.P3 intimation to the mother-in-law of the appellant (wrongly stated as wife in deposition of PW1). He further deposed that 300 ml. of arrack was taken as sample in a bottle of 375 ml. capacity and both the plastic can as also the bottle in which the sample was taken was packed and sealed and taken into banthavast under Ext.P1 mahazar. He has identified MO1 as the jerry can taken into banthavast from the appellant. It was suggested to PW2 on behalf of the defence that the appellant was an employee of a shop; that he was at loggerheads with the employers and that they were falsely causing him to be arrested planting the material objects. PW2 Crl. Appeal No.1403 of 2007 -8- has stated that the samples taken from MO1 is also made mention of in the occurrence report. 11. PW3 who is the Preventive Officer in Kollam Excise Divisional Office was at the relevant time Excise Guard in the Punalur range office. He has given evidence corroborating the testimony of PW2 on all material aspects as regards interception of the appellant; seizure of MO1 sample etc. To PW3 also a bald question is put to the effect that the material object has not been recovered from the appellant and that it was arrack planted by the shop contractor so as to implicate the appellant. The said suggestion is also put to PW4 in cross examination. But he also has denied the suggestion that the case was being foisted. It is contended on the basis of the statement given by PW4 in cross examination that notice of arrest was being given to Sarojini Amma, wife of Nanu Nair. All Crl. Appeal No.1403 of 2007 -9- the same, Ext.P3 shows that Sarojini Amma is not wife of the appellant as mentioned by PW2 but is actually wife of Nanu Nair and mother- in-law of the appellant. The mistake committed by PW2 in mentioning Sarojini Amma as the wife when Ext.P3 shows that she is actually the mother-in-law of the appellant, the slip or a mistake committed by the witnesses in mentioning the relationship is of no avail to the appellant to canvass for any benefit out of that mistake as the relationship is clear from Ext.P3. On the whole, the appellant could not bring out in cross examination of PWs.2 to 4 any material which would be of benefit to him to have the prosecution case improbabilised. It is worthy to note that the defence has not adduced any evidence whatsoever to establish the contentions of the appellant that the case was being foisted against him by the contractor of the toddy Crl. Appeal No.1403 of 2007 -10- shop where he was an employee. Not even an iota of evidence is there to show that the appellant was an employee of any toddy shop. There is no mention in the suggestion even, as to who was the contractor under whom the appellant was an employee in toddy shop. 12. The occurrence in the case has taken place at about 2.00 p.m on 15/08/99 and the material objects were produced in court on the very next day namely on 16/08/99 under Ext.P5 property list along with Ext.P6 duplicate copy of forwarding note, Ext.P1 seizure mahazar, Ext.P2 arrest memo, Ext.P3 arrest intimation and Ext.P4 crime and occurrence report. There is absolutely no delay in producing the material objects before court as is contended, in the circumstances. 13. Ext.P7 Chemical Analysis Report shows that the sample forwarded for analysis contained Ethyl Alcohol 46.52% by volume. Crl. Appeal No.1403 of 2007 -11- Thus, the case against the appellant that he was found by PW2 and excise party accompanying him while he was transporting arrack for sale stands established and the conviction of the appellant for offence under Section 8(1) and (2) of the Abkari Act is hence, sustainable and does not deserve to be interfered with. 14. It is finally contended by the learned counsel on State Brief on behalf of the appellant that the sentence awarded to the appellant is too harsh as the substantive term of rigorous imprisonment awarded to him is of three years though the imposition of fine of Rs.1 lakh cannot be assailed as that being the minimum fine prescribed. Considering the entire circumstances of the case and the quantity of contraband involved in the commission of the offence, I am also of the view that the substantive term of imprisonment awarded to the appellant is excessive. Crl. Appeal No.1403 of 2007 -12- 15. In the result, while confirming the conviction of the appellant for offence under Section 8(1) and (2) of the Abkari Act vide judgment impugned, I modify and reduce the sentence of substantive term of imprisonment awarded to the appellant from three years to one year maintaining however, the sentence of fine and the default sentence. 16. Communicate a copy of this judgment to the appellant through the Superintendent of Central Prison, Thiruvananthapuram. If it is found that the term of imprisonment as reduced by this Court as also the term of imprisonment in default of payment of fine has already been undergone by the appellant, he shall be released forthwith, provided his detention is not required to be had in connection with any other case. K.P.BALACHANDRAN, JUDGE kns/-