IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 CRL.A.No. 386 of 2003() ----------------------- SC.110/2000 of ADDL.SESSIONS COURT FAST TRACK (ADHOC-I), ALAPPUZHA .................... APPELLANT/2ND ACCUSED ---------------------------------------------- ANIYAN KUNJU, S/O.VASUDEVAN, PUTHEN VEETTIL DEVIKULANGARA PANCHAYATH, WARD NO.XII, PUTHUPPALLY VADAKKUM MURI, PUTHUPPALLY VILLAGE. BY ADV. SRI.A.MOHAMMED SRI.M.SAJJAD RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.386 OF 2003 ------------------------------ Dated this the 17th day of August, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed by the Additional Sessions Judge, Fast Track (Adhoc-I), Alappuzha in S.C.No.110/2000. The police has charge sheeted two persons for the offences under Sections 8 and 55(a) of the Abkari Act and after trial, acquitted the first accused and convicted the second accused under Section 8 of the Abkari Act and sentenced him to undergo R.I for two years and to pay a fine of Rs. One lakh and in default to undergo S.I for six months. It is against that decision, the second accused has come up in appeal. 2. The points that arise for determination in the appeal are: (1) Whether materials are sufficient to hold the appellants guilty under Section 8 of the Abkari Act and (2) In case of guilt, is the sentence excessive. 3. Points 1 and 2: For the sake of convenience, these points are answered together. It is the case of the prosecution that on 7.6.1998 at CRL.A.NO.386 OF 2003 2 about 1.25 a.m while the police were on patrol duty under the leadership of the Sub Inspector of Police, they saw from a distance that a scooter being pushed through the road by two persons and on seeing the police, the person who was pushing from behind ran away. The other person, namely the second accused was apprehended and the police found a plastic sack on the scooter and on questioning, it was submitted that it were only plastic carry bags. Feeling suspicious about the same, one of the packets was opened and by taste and smell it was found to be illicit arrack. Thereafter as lead by the second accused, he was taken to a neighbouring place from where a plastic can with 25 litres of illicit arrack and a weighing machine were found out. Three plastic packets were taken as sample and from the container, two bottles of 375 ml liquid was also taken as sample, sealed and all the formalities were complied with. 4. The learned counsel for the appellants would argue before me that the independent witnesses had turned hostile to the prosecution and there is a delay of 43 days in producing the sample and material objects and therefore, the accused are entitled to an acquittal. Both the counsel had taken me CRL.A.NO.386 OF 2003 3 through the various documents and evidences available in the matter. 5. PW1 is the Sub Inspector of Police, who had detected the offence and prepared the seizure mahazer. He had spoken in detail about the way in which the accused were apprehended, how the sack contained 350 packets of illicit arrack were found out, the manner in which the sample was taken and also about the factum of leading of the second accused to a nearby spot from where the plastic can containing 25 litres of illicit arrack and a weighing machine were seized. In the cross examination one would see that instead of stating that two sample bottles were taken, he had stated it as three bottles. He had also spoken the way in which the samples were taken. In the cross examination for A2, he had deposed that the witnesses had come to the spot. He had also stated that how the sample was taken and it was labeled. There is no solitary suggestion put to this witness regarding any tampering of the sample or seal. It has to be remembered that the offence is being detected at 1.25 a.m in the mid night and a mahazer is being prepared and therefore, a small variation here and there may not be of CRL.A.NO.386 OF 2003 4 much relevance unless it goes to the root of the matter which affects the right of the accused. 6. PW2 is the police constable, who had accompanied PW1. He had also spoken in line with PW1 regarding the way in which they proceeded, how the vehicle was found, how the samples were taken and also the way in which it was handled. He has also been cross examined at length. But nothing serious is brought out to discredit his evidence. 7. PW3 is the independent witness who had turned hostile to the prosecution. He has been cross examined by the learned Prosecutor. PW4 is the Additional Sub Inspector of Police who had further investigated and laid the charge before the court. 8. So far as the hostility of independent witnesses are concerned, this Court has observed in the decision reported in Sivaraman v. State of Kerala ( 1981 SN 9 Case 17 KLT ) that it has become the habit of the independent witnesses turning hostile in these type of cases for the reasons best known to them. The court also had given the guideline in such cases how to appreciate the evidence of the official witnesses. The court only cautioned that the evidence of the official witnesses should be put to meticulous scrutiny and if it is CRL.A.NO.386 OF 2003 5 found to be intrinsically reliable, then such evidence can be accepted for the purpose of conviction. As stated by me earlier, PWs 1 and 2 had spoken in line and there are minor contradictions here and there but those contradictions are necessarily to happen for the reason that these witnesses were examined almost four and a half years after the detection. Even regarding the mistaken identity, it had been well explained by the court and the court had given the benefit of doubt to the first accused for the reason that there is no cogent evidence. The second accused was caught red handed. So, the question of identity of him does loom large so far as this case is concerned. Since it is submitted that material objects - 25 litres Can and a weighing machine were recovered, as stated by the second accused, the court gave the benefit of doubt to the second accused holding that the provisions of the evidence act does not enable the court to accept the same and therefore exonerated the second accused from the charge under Section 55(a) of the Abkari Act. So, the evidence of PWs 1 and 2 are convincingly clear that the second accused was found in possession of liquor at the relevant point of time. CRL.A.NO.386 OF 2003 6 9. The learned counsel would contend that there is a delay of 43 days in producing the sample and material objects before the court. The court below had explained and considered that question in Para 17 of the judgment. The court had also referred to the decisions cited by the learned counsel for the appellants and held that there are factual differences between the cases. The very object of insisting for meticulous following of the procedure is to ensure that the liquid that is seized is that possessed by the person and it is that liquid which is taken as sample and ultimately it is that sample which is sent for chemical analysis. Here PWs 1 and 2 had spoken about the same and there is not even a resemblance of suggestion attributing tampering of the samples. When it is so, the mere delay cannot be a ground for giving the benefit to the accused. Further the chemical analysis report would also reveal that the seals found on the sample were intact and found tallied with the sample seal provided and that it contained 22.10%,21.06%,27.80%,84.58% and 84.58% by volume of ethyl alcohol. It was also found that item Nos. 4 and 5 were found to be spirit. But, as stated by me earlier, these two items had not been taken into consideration by the court for the reason CRL.A.NO.386 OF 2003 7 that it held that it is inadmissible under Sections 26 and 27 of the Evidence Act. So, from these discussions, I hold that the trial court was justified in holding that the second accused has committed the guilt under Section 8 of the Abkari Act and has been convicted there under. 10. Now turning to the question of sentence. I had perused the 313 statement of the second accused and at the time of rendering the sentence, he was questioned and he had stated that he had aged parents to be looked after and he is the only son and therefore some leniency should be shown. From the facts and circumstances, it can be seen that he was in possession of 350 packets of 70 ml each arrack, which is really a social menace to the society. But considering the other factors, I am inclined to reduce the sentence from two years to one year and also the default sentence of imprisonment from six months to two months. 11. In the result, the criminal appeal is disposed of as follows: 1. The finding of guilt under Section 8 of the Abkari Act is sustained. 2. The sentence is modified and the accused is sentenced CRL.A.NO.386 OF 2003 8 to undergo R.I for a period of one year and to pay a fine of Rs. One lakh and in default to undergo S.I for two months. 3. The accused shall be entitled to set off as contemplated under Section 428 of the Cr.P.C and the lower court shall execute the sentence. M.N. KRISHNAN, JUDGE cl 9 M.N. KRISHNAN, J. --------------------------- CRL.A.NO.386 OF 2003 ------------------------------ 17th day of August, 2009 JUDGMENT