IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 CRL.A.No. 197 of 2003() ----------------------- SC.116/2000 of ADDL.SESSIONS COURT (ADHOC COURT-I), KASARAGOD ................................................................ APPELLANT(S): ACCUSED ------------------------------------- B.NARAYANA SHETTY, S/O. BEBU SHETTY, UDOOR HOUSE, BEKUR VILLAGE, KASARGOD DISTRICT. BY ADVS. SRI.M.SASINDRAN SRI.M.B.PRAJITH RESPONDENT(S): RESPONDENT ---------------------------------------------- STATE-REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.C.M.NAZAR, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.197 OF 2003 -------------------------- Dated this the 10th day of July, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the conviction and sentence passed in S.C.116/00 of Addl. Sessions Judge, Ad hoc-I, Kasaragod. The accused was charge sheeted u/s.55(a) of Abkari Act and on conclusion of trial he was convicted. For the said offence, he is sentenced to undergo rigorous imprisonment for a period of 3 years and to pay a fine of Rs.1 lakh and in default to undergo 6 months further imprisonment. It is against that decision the accused has come up in appeal. The points that arise for determination are, 1.Whether the materials are available to hold that the accused has committed the offence u/s.55 (a) of Abkari Act ? 2.In case of guilt whether the sentence awarded is excessive ? 2. Points 1 and 2 :- Heard the learned counsel for the 2 CRL.A.No.197 OF 2003 appellant as well as the prosecutor. The learned counsel for the appellant would submit before me that the evidence rendered in this case is not sufficient and there is delay in producing the material objects before the court that has caused prejudice to the accused. It is the case of the prosecution that on 8.10.98 when PW4 was on patrol duty and when they reached near the 110 KV Sub Station at Kubanur they saw the accused walking with a bag. He was apprehended and was examined and the bag contained 75 packets of 100 ml. Karnataka arrack. Three packets each were opened and was transferred into two 375 ml. bottles and sealed. Thereafter the accused was arrested and proceeded to the police station. Ext.P3 is the F.I.R. Ext.P4 is the forwarding note and Ext.P5 is the chemical analysis report. The chemical analysis report would show that the seal on each bottle was intact and found tallied with the sample seal provided and further one bottle contained 30.79 % by volume of ethyl alcohol and the other bottle 32.85% by volume of ethyl alcohol. In cross examination, PW4 would depose that the reliable 3 CRL.A.No.197 OF 2003 information was obtained but it has not been recorded anywhere. He would also state that the forwarding note was prepared on 18.10.1998 but it was received in the court only on 12.11.1998. He had also admitted that he knows that the search articles has to be produced forthwith before the court. He had denied the suggestion that the accused has been caught hold off while he was coming back after closing the shop of his father. PW1 is a police constable who had accompanied PW4 and he had spoken about the apprehension of the accused, the arrest of the accused, the seizure of the material objects etc. He had deposed that the accused attempted to escape and he was caught hold off. According to him, the seal KP was used in the sample. PW5, the Sub Inspector of police, had completed the investigation, prepared the scene mahazar and produced before the court. Pws.2 and 3, the seizure mahazar witnesses, had turned hostile to the prosecution. The evidence of Pws.1 and 4 would reveal that on the eventful date, the accused was apprehended and arrack was seized and recovered from him and sample 4 CRL.A.No.197 OF 2003 was taken and sealed. It is a settled position of law now, that the evidence of the official witnesses can be looked into even if the independent witnesses are hostile, provided, their evidence of scrutiny is found to be intrinsically reliable and inherently probable (1981 KLT Short Notes, page No.9, Case No.17) reported in Sivaraman V. State of Kerala. The learned counsel argues before me that regarding the delay, it is true that if the delay has caused prejudice, it has to be answered in favour of the accused. But so far as this case is concerned, it is not so, for the reason that the seal were intact and tallied with the sample provided and there is no suggestion regarding the tampering anywhere in the cross examination. Therefore, I hold that the delay of 2 or 3 days has not materially affected the case of the prosecution. So far as the delay is concerned the apprehension was late in the evening of 8th of October 1998 and it was produced on 12th. 10th and 11th of October 1998 was 2nd saturday and sunday, on which date the courts` offices are not opened. So there is only delay of 1 day which is on 9th of October 1998, which is explainable. Also, since it is an illegal 5 CRL.A.No.197 OF 2003 liquor, so far as the State of Kerala is concerned and as the arrack is seen manufactured in the State of Karnataka, the possession has to held as one, while illegally transporting. Transport does not mean that, that it should be carried in a vehicle. Therefore I do not find any ground to interfere with the finding of the court. Therefore the conviction u/s.55(a) of Abkari Act is confirmed. So far as, it relates to the sentence, it can be seen that the accused was only 18 years at the time of the offence. By the time the case was listed for the trial, he had lost his father and the responsibility is now on his shoulder to look after his mother and sister and it is also to be considered that his elder sister also is dead. So I feel, sentence of imprisonment for a period of 3 years will be harsh on him and it will make his dependants destitute. Therefore, I am inclined to reduce the sentence to a 4 months imprisonment and also to reduce the period of default sentence into one of 2 months. In the result the criminal appeal is disposed of as follows :- 1. The finding of guilt u/s.55(a)of Abkari Act is confirmed. 6 CRL.A.No.197 OF 2003 2. The sentence is modified and the accused is sentenced to undergo rigorous imprisonment for a period of 4 months and to pay a fine of Rs.1 lakh, in default of which, further simple imprisonment of 2 months. He is entitled to set off as contemplated u/s.428 of Cr.P.C. The lower court shall execute the sentence. M.N.KRISHNAN, JUDGE ami.