IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 25TH NOVEMBER 2009 / 4TH AGRAHAYANA 1931 CRL.A.No. 1953 of 2003() ------------------------ SC.1848/2001 of ADDL. SESSIONS COURT, FAST TRACK II, TRIVANDRUM .................... APPELLANT(S): ACCUSED: ---------------------- GANGADHARAN, S/O. KOCHAPPI, KOTTOOR, PANAYILKADA VEEDU, ATTIPRA, ATTIPRA VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.S.RAJASEKHARAN NAIR RESPONDENT(S): COMPLAINANT & STATE: --------------------------------- 1. THE EXCISE INSPECTOR, KAZHAKUTTAM RANGE, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. APPEAL 1953 of 2003 ------------------------------------------------------ Dated: NOVEMBER 25, 2009 JUDGMENT The appellant is the accused in Sessions Case No.1848/2001 of Additional Sessions Judge, Fast Track Court No.II, Thiruvananthapuram. He was convicted under sec.58 of the Abkari Act and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs. One Lakh, in default to undergo rigorous imprisonment for a further period of three months. The accused has challenged his conviction and sentence in this appeal. 2. The case of the prosecution as shaped in evidence before the trial court was that on March 12, 1998 at about 4.30 p.m. the accused was found in possession of two litres of illicit arrack in a five litre plastic can on the Manvila-Kottoor road in Attipra village. and that thereby committed an offence punishable under secs.8(1) and 58 of the Abkari Act. 3. The accused on appearance before the committal court was furnished with copies of documents relied on by the prosecution. As an offence under secs.8(1) and 58 of the Abkari Act is exclusively tried by the Court of Sessions, the case was committed to the CRL. APPEAL 1953 of 2003 2 Sessions Court, Thiruvanathapuram from where it was made over to the Assistant Sessions Court, Thiruvanathapuram. 4. The accused on appearance before the Assistant Sessions Court pleaded not guilty to a charge under secs.8(1) and 58 of the Abkari Act. Thereafter the case was withdrawn and made over to the trial court for trial and disposal. PWs.1 to 6 were examined and Exts.P1 to P4 and M.O.1 were marked on the side of the prosecution. When questioned under sec.313 Cr.P.C., the accused denied the entire incident. No defence evidence was adduced. 5. The learned Sessions Judge on an appreciation of evidence found the appellant guilty of the offence punishable under sec. 58 of the Abkari Act, convicted him thereunder and sentenced him as aforesaid. The accused has now challenged his conviction and sentence in this appeal. 6. Heard the learned counsel for the appellant and the learned Public Prosecutor. 7. The following points arise for consideration:- I. Whether the conviction of the appellant under sec.58 of the Abkari Act can be sustained? II. Whether the sentence imposed in excessive or unduly harsh? Point No.I CRL. APPEAL 1953 of 2003 3 8. PWs.1 to 6 were examined and Exts.P1 to P4 and M.O.1 were marked on the side of the prosecution to prove the guilt of the accused. PWs.1 and 2 are independent witnesses. They turned hostile and did not support the prosecution. PWs.3 and 4 are the Excise Guard and Excise Preventive Officer respectively of Excise Enforcement and Anti-narcotic Special Squad, Thiruvananthapuram. They consistently stated that on March 12, 1998 at about 4.30 p.m. while they were being on patrol duty through the Manvila-Kottoor road the accused was found carrying a plastic can at Attipra and that then PWs.3 and 4 stopped him and on examination found that in the plastic can in his hand there was two litres of illicit arrack. The accused was arrested on the spot. I have gone through the evidence of PWs.3 and 4. There is nothing to suggest that they were testifying falsely against the accused. It was not suggested during cross- examination and they have any enmity towards the accused. Therefore the trial court is perfectly justified in accepting their evidence. 9. PW.5 is the then Excise Range Inspector, Kazhakuttom, who registered the case. Pw.6 is the successor-in-office of PW.5 who conducted further investigation in this case. He laid the charge before the committal court. 10. As stated earlier, the evidence of PWs.3 and 4 clearly proves CRL. APPEAL 1953 of 2003 4 the case that the accused was found in possession of two litres of illicit arrack as alleged by the prosecution. The case of the accused is that he is an autorickshaw driver, that when he failed to give side to the Excise vehicle, the Excise Officials falsely implicated him in the case. No evidence was adduced on the side of the accused to prove his case. 11. It was next argued by the learned counsel for the appellant that the date of occurrence is March 12, 1998 and that the investigating officer questioned the witnesses only in 2000 which casts serious doubt regarding the truth of the version of PW.1 regarding the incident. I find no force in the above contention. The accused was unable to show that any prejudice was caused to him due to such delay. Further, because of that delay alone the evidence of Pws.3 and 4 cannot be disbelieved. No other point is argued before me. 13. For all these reasons I am inclined to confirm the finding of the trial court that the accused was found in possession of two litres of illicit arrack as alleged by the prosecution, which is confirmed in appeal. I therefore confirm his conviction under sec.58 of the Abkari Act. Point No.II 14. As regards the sentence the accused was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.1 lakh, in default to undergo rigorous imprisonment for three CRL. APPEAL 1953 of 2003 5 months by the trial court. Taking into consideration the fact that the incident occurred in 1998 and that the quantity of liquor involved is only two litres of arrack, I feel that the substantive sentence can be reduced to the period of imprisonment already undergone by him i.e. from 12.3.1998 to 4.4.1998. The fine being the statutory minimum has to be maintained. In the result, the appeal is allowed in part. The conviction of the appellant under sec.58 of the Abkari Act is confirmed, but the sentence is modified to the effect that the substantive sentence is reduced to the period of imprisonment already undergone by him i.e. from 12.3.1998 to 4.4.1998. The fine imposed being the statutory minimum is maintained. His bail bonds are cancelled. Two months time is granted for payment of fine. P.Q. BARKATH ALI, JUDGE mt/-