IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 8TH SEPTEMBER 2010 / 17TH BHADRA 1932 CRL.A.No. 2054 of 2007(B) ------------------------- SC.527/2004 OF THE ADDL. DISTRICT & SESSIONS COURT (FAST TRACK) ADHOC-II, KOZHIKODE) .................... APPELLANT(S): -------------- SREEDHARAN, S/O.KUNHAYI. C.NO. 4903 CENTRAL JAIL, KANNUR BY ADV. ADV.V.MANOJ KUMAR(STATE BRIEF) RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM PUBLIC PROSECUTOR SRI.M.R.VENUGOPAL. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/09/2010 THE COURT ON 08/09/2010 DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------------- Crl. Appeal. No. 2054 of 2007 ----------------------------------------------------- Dated this the 9th day of September, 2010. ORDER This appeal arises from the conviction and sentence passed against the appellant under Section 8(2) of Abkari Act to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default to undergo simple imprisonment for six months. 2. According to prosecution, on 19.7.2002 at about 6.45 p.m. accused was found standing on the side of the road near the house of one Majeed carrying a Can. PW1, the Preventive Officer and the Excise party approached the accused and he was found perplexed. On search, it was found that the Can contained 4 litres of arrack. The accused had no explanation for the possession. A mahazar was prepared in the presence of independent witnesses including PW4. The mahazar is Ext.P2. The accused was arrested from the spot. The articles were seized. The Can [Crl.A.No.2054/2007] 2 is MO1. A sample was also taken and sent for analysis. Ext.P7 is the Chemical Analysis Report. A site plan (Ext.P3) was also caused to be prepared by PW3, the Village Officer. Investigation was verified by the Excise Inspector PW5, who laid the charge. 3. The evidence in this case consists of the oral testimony of PWs 1 to 5 and Exts.P1 to P7 and MO1. On an analysis of the evidence in this case, the trial court found that the prosecution proved that the accused was in possession of 4 litres of arrack and he was convicted under Section 8(2) of the Abkari Act. The accused pleaded innocence at the time of questioning under Section 313 Cr.P.C. According to learned Addl. Sessions Judge, the evidence of PWs.1 and 2, the Excise Officials and PW4, the independent witness, Ext.P1, the arrest memo and Ext.P2, the mahazar would clearly show that the accused was found with contraband article as alleged. 4. Learned defence counsel submitted that it has come out from the evidence of PW3, Village Officer, that [Crl.A.No.2054/2007] 3 the place of occurrence is not clearly shown in the site plan Ext.P3. Learned Public Prosecutor submitted that there is no infirmity in the finding entered into by the trial court. The evidence of PWs 1 and 2, the Excise Officials, is intact and they corroborated each other in all other material particulars. Though PW4 turned hostile to the prosecution, he admitted his signature in Ext.P1 and he had no acceptable explanation for the signature in Ext.P1, it is argued. 5. On hearing both sides and on going through the records and the order under challenge, I am satisfied that there is absolutely no reason to interfere with the conviction and sentence. Learned defence counsel submitted that the appellant had already suffered the sentence during the pendency of this appeal. PWs.1 and 2, the Excise officials, corroborated each other in all material particulars regarding the circumstances under which the accused was arrested, the search and seizure were effected. Their evidence also shows that accused was found in possession of MO1 containing 4 litres of [Crl.A.No.2054/2007] 4 arrack. They have stated that the accused was found standing carrying a Can MO1 which contained about 4 litres of arrack from which a sample was drawn. It has come out in evidence that the said sample was sent for chemical analysis and, as per the report Ext.P7, the article contained ethyle alcohol. 6. The evidence of PWs 1 and 2 remain undiscredited by cross-examination. Nothing is suggested to PW1 or PW2 as to why they should falsely fabricate a case against the accused. The evidence of PW4, an independent witness, shows that he signed in Ext.P1 mahazar. He only said that he was asked to sign and hence, he signed the same. He deposed that he did not see the Excise Officers seizing article from the possession of accused. 7. In the absence of any material to doubt the veracity of the official witnesses PWs 1 and 2, I find that the hostility of PW4 is of no consequence. There is no reason to set aside the conviction or sentence. On going through the order under challenge, I also find that the [Crl.A.No.2054/2007] 5 court below considered the evidence in detail and also made conclusions on the basis of various decisions of the Supreme Court. Hence, the order under challenge is only sustainable and the conviction and sentence are only to be confirmed and I do so. This appeal is dismissed. K.HEMA, JUDGE. krs.