IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 CRL.A.No. 138 of 2008() ---------------------------------- SC.323/2006 of ADDL. SESSIONS COURT /SPL. COURT (NDPS ACT CASES), THODUPUZHA .................... APPELLANT(S): ACCUSED ---------------------- SUKUMARAN S/O.RAMANKUTTY, AGED 44 YEARS, THADATHIPPARAMBIL (H),AYYAPPANKOVIL VILLAGE, THOPPIPALA KARA P.O., IDUKKI DISTRICT. BY ADVS. MR.P.NOOR SEMIR MR.T.J.MICHAEL RESPONDENT(S): COMPLAINANT ------------------------- STATE OF KERALA REPRESENTED BY PUBLICL PROSECUTOR. BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/06/2009, ALONG WITH CRA NO. 151 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NOs.138 & 151 OF 2008 ------------------------------ Dated this the 1st day of June, 2009 JUDGMENT These appeals are preferred against the conviction and sentence in S.C.No.323/2006 passed by the Additional Sessions Judge/Special Judge for N.D.P.S. Act cases, Thodupuzha. The brief facts necessary for the disposal of the appeal are stated as follows: 2. It is the case of the prosecution that on 18..7.2002 at about 6 p.m, the officials got reliable information that illicit arrack was being distilled in Mattappally Teak Plantation and therefore, they proceeded to the said place and they were able to see two persons distilling arrack from a distance and on their sight they attempted to run away. They were followed and the first accused was arrested and the 2nd accused escaped from the place. It is the further case of the prosecution that after arresting the 1st accused, he was taken to the farm from where they were able to find wash as well as arrack. Arrack was found being distilled in a bottle besides being stored in a white plastic can. In the plastic 2 CRL.A.NOS.138&151/08 barrel, they were able to find 50 liters of wash and the iron barrels contained 200 liters each filled up with wash. According to the prosecution, samples of arrack and wash were collected and sealed in accordance with the rules and thereafter other liquids were seized and produced before the court and prosecution initiated. 3. In the trial court, PWs 1 to 5 were examined, Exts.P1 to P10 and MOs 1 to 11 were marked. 4. On analysis of the evidence, the trial court found the accused guilty of the offences under Section 55(a) and Sections 8(1) and (2) of the Abkari Act. They were convicted and sentenced to undergo imprisonment for a period of two years each and to pay a fine of Rs.One lakh each. Default sentence for non-payment of the fine was fixed as six months. 5. It is against that decision, the first accused has come up in appeal as Crl.A.No.151/2008 and the 2nd accused has come up in appeal as Crl.A.No.138/2008. The points that arise for determination in these appeals are whether the trial court has erred in arriving at a decision regarding the guilt of the accused (2) whether there is anything to interfere with the 3 CRL.A.NOS.138&151/08 quantum of punishment that has been awarded to the accused. 6. Point No.1: This point deals with the question of the offence committed under the provisions of the AbkariAct. It is the case of the prosecution that the Excise Officials, on getting reliable information, went to the teak plantation called Mattappally and from a distance of 15 meters, they saw two persons illicitly distilling arrack and rushed to the spot. That two persons escaped and they were chased and the 1st accused was caught hold of. He was arrested and the illicit arrack was seized. The sample was taken in a bottle from the white can of arrack and the bottle and the samples of wash was collected from the other material objects. The accused were found in custody of 200 liters of wash in iron barrels and 50 liters in plastic barrels. Illicit arrack was found in a bottle and a white can. PWs 1 and 2, who were allegedly to be the eye witnesses for the seizure, turned hostile and therefore nothing could be elicited from them to support the case of the prosecution. PW3 is the Preventive Officer of the Excise Range Office, Kattappana and he had 4 CRL.A.NOS.138&151/08 given the details. He had spoken about the way in which they proceeded to Mattappally Teak Plantation, how the accused were found and how the first accused was apprehended and also about the factum of the escape by the 2nd accused. He has clearly deposed that illicit arrack was collected in a bottle from the material objects used for the distillation of the arrack. He was able to find 50 liters of brownish liquid, which was wash, and he had also spoken about the collection of wash in other barrels as well. It is also his version that in the white can there was illicit arrack . According to him, since the bottle and the white can contained illicit arrack, they were mixed up and sample was taken and so far as brownish liquid wash is concerned, it was taken from other containers. 7. Learned counsel for the accused had brought to my notice the improvements given by the witnesses at the time of cross examination. In Ext.P1, there is no statement to the effect that they had understood that A1 and A2 were distilling illicit arrack. But in cross examination, he would say that he has known about it. Similarly, it is also stated that how he had 5 CRL.A.NOS.138&151/08 sealed the bottles. It has to be understood that the first statement recorded or the mahazar prepared cannot be treated as an encyclopedia of all the materials relevant for the purpose of determination of a criminal case. These are all acts done by the officials in the official capacity and he has explained in his evidence that though he knew that A1 and A2 were the persons found distilling, since it was not confirmed, he did not write it at that time. So far as sampling and sealing is concerned, these are official acts which done by the persons. It has also to be remembered that there was no delay in producing the same before the court with the forwarding note and the chemical analysis report also would show that the seal was intact at the time of receiving for the purpose of chemical analysis. A reading of the evidence of PW3 inspires confidence in me to believe the same and it need not be simply brushed aside for the reasons that they are official witnesses. PW3’s evidence is cogent and clear and therefore, I do not find any ground to discard that evidence just because independent witness had turned hostile, it will not improve the case of the accused. 6 CRL.A.NOS.138&151/08 8. PW4 is the Assistant Excise Inspector, who had deposed about the way how he had produced the material objects, the accused and the documents before the court. He had also spoken about the forwarding note which is marked as Ext.P9. The seizure was on 18.7.2002 and the samples and the accused were produced before the court on 19..7.2002 itself. So, there is no much delay at all in producing the accused as well as the material objects in the case. 9. PW5 is the Excise Range Inspector of Kattappana. He had spoken about the receipt of the chemical analysis report, which is marked as Ext.P10. It shows that it contains alcohol. Evidence of PWs 3 to 5 shows about the detection and finding out of the distillation of illicit arrack and therefore, I do not find any illegality committed by the court below in arriving at a decision that the accused have committed the offences punishable under Section 55(a) and Sections 8(1) and (2) of the Abkari Act. 10. Point No.2: Now the next question is regarding the sentence. Learned counsel for the appellant very persuasively submitted 7 CRL.A.NOS.138&151/08 before me that they are undergoing imprisonment from 31.12.2007 and besides that they had also undergone remand during the trial stage and therefore, the court should show some leniency. The first accused had submitted before the court that he has a wife, children and the old mother to be looked after and the second accused had stated that he had not committed the offence at all. The accused are aged 44 years each and there is nothing before this Court or the court below to show that they have criminal backgrounds on previous occasions. Therefore, taking into consideration the totality of the facts and circumstances, I feel that some leniency can be shown whereby the sentence of imprisonment can be reduced to a period of one year each coupled with the fine of Rs.One lakh and in default, to undergo S.I for a period of six months. 11. In the result these criminal appeals are disposed of as follows: (1) Finding of guilt under Section 55(a) and Sections 8 (1) and (2) of the Abkari Act are sustained. (2) The conviction and sentence passed by the court 8 CRL.A.NOS.138&151/08 below is modified and the accused are directed to undergo imprisonment for a period of one year each for the offence committed under Section 55 (a) and Sections 8(1) and (2) of the Abkari Act. They are also directed to pay a fine of Rs.One lakh each and in default, to undergo S.I for a period of six months. They are also entitled to set off for the remand period they had undergone during the trial stage. I make it clear that the set off can be given to the person, who had undergone pre-trial remand. M.N. KRISHNAN, JUDGE cl 9 CRL.A.NOS.138&151/08 10 CRL.A.NOS.138&151/08