IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 14TH JANUARY 2009 / 24TH POUSHA 1930 CRL.A.No. 124 of 2009 ( SC.604/2003 of ADDL. SESSIONS COURT (ADHOC), KOLLAM) .................... APPELLANT/ACCUSED: --------------------------------- CHELLAPPAN, S/O.SANKU, AGED 52 YEARS, KALEEKAL THARAYIL KIZHAKKE THARAYIL, ADINADU VADEKKUMMURI, KULASEKHARAPURAM VILLAGE FROM PALLI AYYATHAN LAKSHAM VEEDU, PERUMANTHRA MURI, CLAPPARANA VILLAGE, KARUNGAPPALLY TALUK. BY ADV. SRI.V.LEKSHMANAN RESPONDENT/COMPLAINANT: ------------------------------------------- STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, KARUNAGAPPALLY THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.AMJAD ALI. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A. No.124/2009 ---------------------------------------------- Dated, 14th January, 2009 JUDGMENT This appeal is preferred by the sole accused in S.C.No.604 on the file of the Addl.District and Sessions Judge (Adhoc) Court No.1, Kollam. By the judgment dated 9.4.2008, in the above case, he is convicted under section 8(1) of the Abkari Act. Aggrieved by the above conviction and sentence, this appeal is preferred. 2. The prosecution case is that on 5.2.2000 at 12.30 noon, the accused was found in possession of two litres of arrack in a plastic Can having the capacity of 2.5 litres, at the pathway near the property of Thevalassery Vikraman Pillai, Adinad Kulashekarapuram Village, Karunagappally Taluk. Upon the above allegation, crime No.12/2000 was registered in the Excise Range, Karunagappally for the offence under section 8(1) and (2) of the Abkari Act. On completion of the investigation, final report was laid before the Judicial First Class Magistrate, Karunagappally whereupon C.P.No.190/2001 was instituted and by order dated 9.12.2002 in the above proceedings, the learned Magistrate committed the case to the court of Sessions, Kollam. The learned Sessions Judge, Kollam made over the case to the court of Principal Asst. Sessions Judge, and subsequently transferred the case to the trial court Crl.A.124/09 -:2:- for disposal. When the accused appeared, after hearing the prosecution as well as the defence, a formal charge was framed which was read over and explained to the accused to which he pleaded not guilty and consequently, the prosecution adduced evidence consists of the oral testimony of PWs 1 to 7 and the documentary evidence such as Exts.P1 to P9. Material object was identified and marked as M.O.1. When, the accused was questioned under section 313 Cr.P.C., he denied the incriminating circumstances, which emerged during the prosecution evidence. No evidence was adduced by the accused. Finally, the trial court found that the accused was guilty of the charge levelled against him and accordingly, he is convicted under section 8 (2) of the Abkari Act. Thereafter on hearing the accused on sentence, he was sentenced to undergo rigorous imprisonment for a term of two years and to pay a fine of Rs.1,00,000/-. The default sentence was fixed as simple imprisonment for 6 months. It is the above conviction and sentence challenged by the accused /appellant. 3. I have heard Sri V.Lakshmanan, the learned counsel appearing for the appellant and also the learned Public Prosecutor. 4. The case of the prosecution reveals mainly through the deposition of PWs 1 and 6 who are the Preventive Officers attached to the Karunagappally Excise Range. PW1 is the officer who detected the Crl.A.124/09 -:3:- crime and PW 6 is the officer who accompanied PW1 at the time of the detection. They have stated that on 5.2.2000, they were on patrol duty and while reached at the western side of the culvert on the eastern side of Thevalassery junction, and on the eastern side of the house of Thevalassery Vikraman Nair, they could see the accused holding a plastic black Cannas of having the capacity of 2 ½ litres, proceeding towards the detecting party and on seeing the party, he tried to leave the place. According to the above witnesses, they intercepted him and on examination of the Cannas which was possessed by the accused, in the presence of occurrence witness, by tasting and smelling, they identified that the Can contained illicit arrack. Accordingly, the accused was arrested at the spot. The information about his arrest was passed on to Vasantha, wife of accused by giving Ext.P1 arrest notice which contained the signature of PW1 and said Vasantha. PW1 had also prepared Ext.P1 arrest memo regarding arrest, seizure of the contraband article etc. and mentioned in detail in Ext.P3 mahazar. The seized materials were affixed with label which contained the signature of both PW1 and accused. After completing the proceedings at the spot, the contraband article and other materials seized and also the accused were taken to the Excise Inspector namely, PW3. The evidence of PW1 fully corroborated by the testimony of PW6. PW6 had Crl.A.124/09 -:4:- also identified M.Os 1 and the accused. When PW3, the Excise Inspector was examined, he had deposed that he had received the accused, property and the records from PW1 and accordingly, registered C.R.No.12/2000 on the basis of Ext.P3 seizure mahazar and PW3 prepared Ext.P4 occurrence report. Thus, according to PW3, Thondi Articles and the connected documents were produced before the court on the same date of the detection. Ext.P5 is the remand application and Ext.P6 is the property list. The documents would further show that the properties mentioned in the list were received in the court on 5.2.2000 itself. As per Ext.P6, request was made to forward the sample for chemical analysis. Ext.P7 is the Chemical Analysis Report. Ext.P7 disclosed that the sample received in the Lab contained 30.37 percentage by volume of ethyl alcohol. PW5 property clerk was examined to show that the Thondi articles were received in the court on 5.2.2000. PW4 is the officer who conducted the investigation in the above crime. He recorded the statement of witnesses and submitted charge against the accused, on getting Ext.P7 chemical examination report. Thus on the basis of the evidence, the trial court found that the accused is guilty of the charge levelled against him. 5. The learned counsel for the appellant submitted that the order of conviction and sentence passed by the court below are not Crl.A.124/09 -:5:- sustainable either on law or on facts. According to the learned counsel, there is no evidence to connect the accused/appellant with the alleged crime since the prosecution has failed to adduce independent evidence. Thus according to the learned counsel, except the interested version of the official witness, absolutely, there is no other evidence to corroborate the version given by the official witness. The learned counsel also submitted that there was no proper sampling. It is also argued that regarding the forwarding of the sample for chemical analysis, there is no acceptable evidence since PW5 who was examined by prosecution was not able to depose before the court correctly as she had no direct acquaintance with the proceedings. Thus, in the above background, it is submitted that the order of conviction and sentence passed by the court may be set aside. 6. Strongly supporting the finding of the trial court, the learned Public Prosecutor submitted that the evidence of the official witnesses are free from doubt and infirmities and therefore, in the absence of independent witness, the evidence of the official witnesses can be acted upon. It is pointed out by the learned Public Prosecutor that the contraband articles were seized from the possession of the accused and the sample was drawn at the spot and the accused and the materials were produced in the court on the same date of seizure and it Crl.A.124/09 -:6:- is from the court, the sample was sent for chemical analysis and as per Ext.P7 report, it is certified that sample contained ethyl alcohol. Therefore, the Public Prosecutor submitted that the trial court had rightly come into the conclusion regarding the guilt of the accused based upon materials and evidence on record and therefore no interference is warranted. 7. I have heard and carefully considered the arguments advanced by the learned counsel for the appellant as well as the learned Public Prosecutor. Going by the evidence of PWs 1 and 6, it is clear that their evidence is free from contradictions and infirmities and they have deposed before the court in terms of the prosecution case. Though they were examined extensively, nothing was brought to discredit their version. Regarding the drawing of sample, Ext.P3 mahazar deals with the procedure adopted by PW1. I find no defect in the drawing of sample and also sending the same to the Chemical Analysis Laboratory. Ext.P7 report would show that the seal on the bottle was intact and found tallied with the sample seal provided. Nothing is brought on record to take a different view. If that be so, the minor discrepancy of non explanation regarding certain aspects in the deposition of PW5 is not sufficient to disbelieve the prosecution case. 8. Thus on an evaluation of the evidence adduced by the Crl.A.124/09 -:7:- prosecution and the materials on record, I am of the view that the finding of the trial court is fully supported by the evidence and, hence, the conviction arrived on by the court below is absolutely correct. Therefore, the conviction is confirmed. 9. Regarding the sentence, the learned counsel submitted that a lenient view may be taken. It is also pointed out by the learned counsel that at the time of the pronouncement of the judgment, the accused was at the age of 52 years. According to the learned counsel, when compared with the quantity alleged to have possessed by the accused, the sentence awarded is disproportionate. I have carefully considered the above submission. Considering the particular facts and circumstances involved in the case, I am of the view that certain modifications can be made with respect to the sentence. Accordingly, the substantive sentence of imprisonment is reduced from two years to nine months. As the fine amount awarded is only the statutory minimum, no interference is called for. But the default sentence is refixed as one month instead of six months. Set off is allowed under section 428 of Cr.P.C. 10. From the records it is revealed that the appellant was arrested on 5.2.2000 and he was in custody as an under-trial prisoner till his release on bail on 10.3.2000. Thus he had undergone Crl.A.124/09 -:8:- imprisonment for 34 days. Pursuant to the pronouncement of the impugned judgment, he is undergoing imprisonment from 9.4.2008 onwards and as on today, he had completed 9 months and 10 days . Thus he had already suffered imprisonment for a total period of 314 days. As the substantive sentence of imprisonment is refixed as 9 months and the default sentence is refixed as one month and he had already undergone a period of 314 days, the appellant/accused is entitled to get release from jail, especially, the benefit of set off is allowed under section 428 of Cr.P.C. Therefore, there will be a direction to release the appellant/accused forthwith, if he is not required in any other case. Thus, the appeal is disposed of confirming the conviction but subject to the above modification with respect to the sentence. V.K.MOHANAN, JUDGE kvm/- Crl.A.124/09 -:9:- V.K.MOHANAN, J. No.... Judgment/Order Dated: