IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 CRL.A.No. 361 of 2003() ---------------------------------- SC.65/2001 of ADDL. SESSIONS COURT (ADHOC), THODUPUZHA .................... APPELLANT(S): ACCUSED --------------------- GEORGE S/O. JOSEPH, ARACKAMYADIL VEEDU, EDAMARUKARA, UDUMBANNOOR VILLAGE. BY ADVS. MR.M.A.FIROZ MR.C.S.ULLAS RESPONDENT(S): RESPONDENT ------------------------- STATE OF KERALA, REPRESENTED BY ITS SUB INSPECTOR OF POLICE, KARIMANNOOR. BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CRL.MP. NO.2023/2003 IN CRA. NO.361/2003 DISMISSED 09/07/2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE TSS M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 361 OF 2003 = = = = = = = = = = = = = = = Dated this the 9th day of July, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed u/s 55(a) and (l) of the Abkari Act whereby the accused has been convicted to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.1,00,000/- and in default to undergo simple imprisonment for three months. It is against that decision the accused has come up in appeal. I am informed by the learned counsel for the appellant that the accused had already undergone sentence. The point that arises for determination in the appeal is whether the conviction and sentence passed by the Court below is proper. It is the case of the prosecution that on getting reliable information on 3.2.2000 that the accused was dealing with illicit arrack, have proceeded to the place and at that time saw the accused coming out of the house with a Crl. Appeal NO. 361 OF 2003 -:2:- plastic can and he was intercepted and examined and by smell and taste it was found to be arrack. When questioned further he also pointed out two more plastic cans and it also contained 10 liters and 20 liters of arrack respectively. PW3 and 4 smelt and tasted and got satisfied that it was arrack. The sample was taken in six bottles, it was sealed and later the accused were arrested and produced before court. The chemical examiner's report revealed that the bottles contained more than 36% by volume of ethyl alcohol. The Court below considered the evidence of PWs.3 and 4. It was also scrutinized and there is nothing to find that there is any suspicion about the credibility of their evidence. 2. So far as the delay in producing the sample is concerned it is well explained by stating that it was in the proper custody of the person who had seized it and on account of the lack of conveyance facility it took some time for the production of the article. The said explanation also is acceptable and therefore I find the Court below has properly convicted the accused under the provisions of the Abkari Act Crl. Appeal NO. 361 OF 2003 -:3:- which does not call for any interference and therefore the appeal is dismissed. If he had already undergone the sentence nothing remains to be done otherwise the lower court has to execute the sentence. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 361 OF 2003 -:4:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 361 OF 2003 = = = = = = = = = = = J U D G M E N T 9th July, 2009