IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 20TH JULY 2009 / 29TH ASHADHA 1931 CRL.A.No. 837 of 2003 ----------------------- SC.369/1999 of ADDL. SESSIONS COURT (ADHOC), KOZHIKODE .................... APPELLANT/ACCUSED: --------------------- SHIBU, S/O.EYILANDY, KAKKAKUNIYIL HOUSE, BALUSSERY, KOZHIKODE. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT/RESPONDENT: ------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR : SRI C M NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/07/2009 , THE COURT ON 20/07/2009 DELIVERED THE FOLLOWING: M N KRISHNAN, J ---------------------------------------- Criminal Appeal No. 837 of 2003 --------------------------------------- Dated this 20th day of July 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed in S.C.No.369 of 1999 of the Additional Sessions Judge, Fast Track (Adhoc-I), Kozhikode. It is the case of the prosecution that the accused was found in possession of 3 litres of illicit arrack in a 5 litre Can. He was restrained, examined sample taken and later arrested and produced before court. After trial, he is sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.100000/- and in default to undergo further imprisonment for 9 months. The learned counsel had raised the following points in his argument namely: 2. The material objects had reached the court on 25-08-97 but it had reached the chemical analyst only on 19-09-97 and therefore prejudice has been caused to the accused. The evidence in this matter is that of PW1 and PW2. They have tendered evidence to the effect that on 24-08-97 by 11.30a.m they found the accused holding a plastic Can in his hand, they intercepted him on suspicion and examined the Can and by taste and smell, found it to be illicit arrack. It contained about 3 litres of arrack. It is also submitted that sample was taken, labelled, sealed and was produced before PW3. It is true that the independent witness had not supported the case of the prosecution. The chemical analyst report would reveal that the liquid contained Crl.R.A.No.837 of 2003 2 23.77% by volume of Ethyl Alcohol. So far as the credibility of PWs.1 and 2 are concerned, there is no much contradiction and therefore nothing wrong in accepting the same. It has been stated in the decision reported in Sivaraman V. State of Kerala (1981 KLT SN page 9 case No.17) that the evidence of official witnesses can be accepted if they can stand meticulous scrutiny. Therefore I find that the evidence of PWs.1 and 2 are acceptable. (3). Sampling and sealing had been done properly and it has been produced before court on the very same day of the seizure. It is contended by the learned counsel that the forwarding note was also prepared on 24-08-97 and it is seen by the magistrate on 25/08/97, but the sample had been taken to the lab on 09-09-97. Therefore the learned counsel contends that it creates a reasonable suspicion in the mind of an ordinary prudent man and therefore benefit of doubt should go to the accused. Certainly, it would be properly explained. The sample was received by the court on 25-08-97 with the forwarding note. It would have taken time to process it and send it. It was the reason for the delay. This is not a long delay. Further whatever is sampled, sealed and handed over to the court is entrusted to the Excise guard and it is seen from the chemical analyst's report that the seal on the sample was found tallied with the sample seal provided. Now the things are testified and I am also satisfied about the correctness of the same. So on that technical ground, acquittal cannot Crl.R.A.No.837 of 2003 3 be granted as no prejudice has been caused. Materials available establish the case and therefore there is nothing to interfere with the conviction passed by the court under Sec.55(a) of the Abkari Act. (4) Now turning to the question of sentence. The accused is a poor person and the case records would reveal that he has been in remand and he has an aged mother to look after. Taking in to consideration the entire materials, I am of the view that the sentence is to be reduced to simple imprisonment of three months and default sentence of one month. In the result the criminal appeal is disposed of as follows: 1. The conviction under section 55(a) of the Abkari Act is confirmed 2. The sentence is modified and the accused is sentenced to undergo simple imprisonment for three months and to pay fine of Rs.100000/- (Rupees One Lakh Only) and in default, to undergo further imprisonment for one month under section 55(a) of the Abkari Act. The accused is also entitled to set off as contemplated under section 428 of the Code of Criminal Procedure. The lower court shall execute the sentence. M N KRISHNAN, JUDGE Sbna/