IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 11TH JANUARY 2008 / 21ST POUSHA 1929 CRL.A.No.1725 of 2003 (D) -------------------------------- SC.435/1999 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-II, KOLLAM .................... APPELLANT: ACCUSED. -------------------------- RENJITH @ VENU, S/O.RAJENDRAN, CHARUVILA PUTHENVEEDU, CHITAKODU MURI, EZHUKONE. BY ADV. SRI.P.VIJAYA BHANU SRI.TONY MATHEW RESPONDENT: COMPLAINANT ----------------------------------- STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.THOMAS JOHN AMBOOKAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.1725 of 2003 ------------------------------------------------ Dated this the 11th day of January, 2008 JUDGMENT The appellant who is convicted for offence under Section 55(i) of the Abkari Act vide judgment of the Additional Sessions Judge (Adhoc)II, Kollam in S.C.435/99 has filed this appeal challenging the conviction and sentence passed against him. 2. Prosecution case is that with a view to make unlawful gain by retail sale of liquor, the appellant possessed and sold IMFL at about 6.00 p.m on 03/01/1998 at Meenad village, Mampallikunnum cherry on the back side of foreign liquor shop FL.Shop No.34 at Chathannoor and thereby committed offence under Section 55(i) of the Abkari Act. 3. On appearance of the appellant/accused before the Sessions Court, charge was framed against him for offence under Section 55(i) of the Abkari Act; was read over and explained to Crl. Appeal No.1725 of 2003 -2- him and he was questioned. Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted. Prosecution examined PWs.1 to 7, got marked Exts.P1 to P3 and got identified MOs.1 to V, M.O.VI series and M.O.VII series. On the prosecution closing their evidence, the appellant/accused was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. On the defence side DW1 is examined. The court below considered the case in the light of the evidence adduced as aforesaid; found the appellant guilty of the offence punishable under Section 55(i) of the Abkari Act; convicted him thereunder and sentenced him to undergo rigorous imprisonment for a term of four years and to pay a fine of Rs.1 lakh and in default to undergo simple imprisonment for a term of one year. Hence, this appeal by the Crl. Appeal No.1725 of 2003 -3- aggrieved accused. 4. It is contended before me by the learned counsel for the appellant that there is no convincing evidence as regards sale of liquor by the appellant as alleged by the prosecution; that in fact he is salesman in the liquor shop along with PW5 under the licensee DW1 and that the entire case is falsely foisted against him. 5. PW7 is the detecting officer and PWs.3 and 4 were respectively the ASI and the Police Constable who accompanied him in the detection and seizure. PWs.1 and 2 are attestors to the mahazar. PW5 is the salesman of the liquor shop of which licensee is DW1 and the accused is stated to be a co-worker with PW5 in the said liquor shop. PW6 is the Sub Inspector who verified the records and laid the charge as against the appellant/accused. 6. PW7 has given evidence as regards the detection effected by him of the appellant Crl. Appeal No.1725 of 2003 -4- conducting sale of liquor behind the liquor shop of PW5. From the scene of occurrence, he has effected seizure of MO.I to MO.I(o) bottles of Honey blend Brandy each bottle containing 375 ml. of brandy, MO.II jug MO.III hardboard box, MO.IV glasses (2 Nos.), MO.V peg measure MO.VI series currency notes (2 nos) each of value of Rs.50/- and 27 ten Rupee currency notes identified as MO.VII to MO.VII (z). As regards the recovery of the glass, the peg measure, the currency notes and the bottles with its contents from the scene of occurrence, no effective cross examination is seen made to PW7. There is not even a suggestive question put to PW7 disputing the seizure of the cash, peg measure, mug and the liquor in several bottles. The argument is that if at all the appellant had sold liquor in retail, at least a few persons who have purchased and consumed liquor from the appellant should have been examined as Crl. Appeal No.1725 of 2003 -5- witnesses. I see no merit in the contentions so advanced as in cases of this nature those who have purchased and consumed liquor are not expected to be traced out and examined as witnesses. The question is only as to whether the prosecution has been successful in establishing the case set up by them by the evidence of witnesses who have been examined and by the material objects produced. 7. Though PWs.1 and 2 who are mahazar witnesses have turned hostile, their evidence shows that they are attestors to Ext.P1. There was no reason for PWs.1 and 2 signing as attestors to Ext.P1 mahazar, had there been no instance of the police preparing mahazar in relation to the occurrence that has taken place at the time and date mentioned in the said mahazar. 8. PW3 the Assistant Sub Inspector of Police has corroborated the testimony of PW7 as regards the seizure and nothing could be Crl. Appeal No.1725 of 2003 -6- brought out in his examination to hold that the alleged detection of sale of foreign liquor by the appellant was foisted or that seizure had not been effected from the accused at the scene of occurrence which is behind the foreign liquor shop of PW5. PW4 the Police constable who also was accompanying PWs.3 and 7 in the detection and seizure has also given evidence corroborating the testimonies of PWs.3 and 7. The suggestion that the Sub Inspector was foisting the case as DW1 the licensee of the foreign liquor shop did not appease him by treating him properly at the end of the year is a suggestion which is made to PW7 as also to PWs.3 and 4 and all of them have denied the said suggestion. PW5, an employee of the foreign liquor shop behind which was the retail sale of liquor being conducted by the appellant has no doubt turned hostile to the prosecution, but according to him, the appellant was his supervisor in Crl. Appeal No.1725 of 2003 -7- F.L.34 where he is employed under DW1 the licensee and naturally therefore, he cannot be expected to support the prosecution case. 9. It is vehemently contended before me by the learned counsel for the appellant that though the chemical analysis report shows that the samples taken contained Ethyl alcohol and it was established thereby that the material objects subjected to chemical examination was IMFL, the quantity examined at the chemical examination laboratory was altogether only 680 ml. of liquor when the quantity that could be possessed as on the date of occurrence was 1.5 litres and therefore, the quantity that was subjected to examination being quantity less than the quantity permitted to be possessed there cannot be an offence made out so as to sustain a conviction against the appellant. The contention is not tenable as the offence for which the appellant is convicted is not for offence under Section 55(a), but for Crl. Appeal No.1725 of 2003 -8- offence under Section 55(i) of the Abkari Act for which what needs to be proved is that the appellant conducted sale of liquor and not that he possessed more than the permissible quantity. Thus, there is no merit in any of the contentions advanced on behalf of the appellant. The conviction by the court below of the appellant for offence under Section 55 (i) of the Abkari Act is correct and sustainable. 10. It is finally contended before me by the learned counsel for the appellant that considering the nature of the offence in a state where prohibition is not there the award of sentence of four years rigorous impri- sonment is highly excessive and unwarranted and that the period of imprisonment in any event deserves to be reduced though however, the fine of Rs.1 lakh imposed is statutorily the minimum amount and cannot be interfered with. I am on agreement with the arguments so Crl. Appeal No.1725 of 2003 -9- advanced by the learned counsel. Considering the entire circumstances of the case, I am of the view that the substantive term of imprisonment awarded to the appellant has to be reduced from four years to one year. 11. In the result, while confirming conviction of the appellant for offence under Section 55(i) of the Abkari Act, I modify and reduce the sentence of substantive term of imprisonment awarded to the appellant from four years to one year while maintaining the fine portion of the sentence and the sentence in default of payment of fine. 12. This appeal thus stands allowed in part. K.P.BALACHANDRAN, JUDGE kns/-