IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN THURSDAY, THE 17TH DAY OF NOVEMBER 2011/26TH KARTHIKA 1933 CRL.A.No. 415 of 2004 (C) ------------------------- (SC.145/2003 OF III ADDITIONAL SESSIONS COURT (ADHOC), FAST TRACK COURT NO. I, THRISSUR) APPELLANT/ACCUSED: -------------------- SUDEVAN S/O. KADATHIRINJI SIVARAMAN, VELLARAMPADAM, MUPLIYAM. BY ADVS.SRI.P.VIJAYA BHANU SMT.P.MAYA RESPONDENT/COMPLAINANT: -------------------------- 1 STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, IERINJALAKUDA RANGE,REPRESENTING PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SMT. S. HYMA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-11-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.S. GOPINATHAN, J. = = = = = = = = = = = CRL.A. 415 OF 2004 = = = = = = = = = = = = = DATED THIS, THE 17TH DAY OF NOVEMBER, 2011. J U D G M E N T The Additional Sessions Judge (Adhoc-1), Thrissur, by judgment dated 21.2.2004 in S.C. 145 of 2003 convicted the appellant for offence under Section 55(a) of the Abkari Act and sentenced to rigorous imprisonment for one year and a fine of Rs. 1,00,000/- with a default sentence of rigorous imprisonment for three months. Assailing the above conviction and sentence, this appeal was preferred. I have heard Advocate Sri. V.C. Sarath, the learned counsel appearing for the appellant and Smt. S. Hyma, the learned Government Pleader. Perused the judgment and evidence on record. 2. The prosecution case is that at 6.20 p.m. on 11.6.1999, while PW1 Excise Inspector, Irinjalakuda moving on patrol duty along with Excise guard and others, the appellant was found pedalling a bicycle carrying M.O.1 jerry can containing ten litres of illicit arrack. Seeing PW.1 and party, the appellant took to his heels after leaving the bicycle. Though PW.2, the Excise Guard, chased him, he could not be caught. The shirt of CRL.A. 415/2004 2 the appellant was kept inside a plastic bag which was on the bicycle. Inside the pocket of the shirt there was Ext.P2 identity card. The contraband along with the material objects were seized for which Ext,P1 seizure mahazar was prepared. Returning to the office, a case as Crime No. 31 of 1999 was registered. The investigation was taken over by PW.3, another Excise Inspector. From the contraband liquid, sample was taken in a bottle. It was sealed then and there and forwarded to the Chemical Examiner, who, after examination, issued Ext.P7 certificate certifying that the sample contained 42.67 % by volume of ethyl alcohol. After completing investigation PW3 laid the charge sheet. The learned magistrate, before whom the charge sheet was submitted, having found that the offence alleged is exclusively triable by a Court of Session, committed the case to the Court of Session, Thrissur from where it was made over to the Additional Sessions Judge. The Additional Sessions Judge framed charge for offence under Section 55 (a) of the Abkari Act. When read over and explained, the appellant pleaded not guilty. Hence he was sent for trial. On the side of the prosecution PWs 1 to 3 were examined. Exts.P1 to P9 and M.Os. 1 to 4 were marked. After closing the evidence for prosecution, the appellant was questioned under Section 313(1)(b) of the Code of Criminal Procedure. The appellant took a defence of total denial. No defence evidence was let in. The learned CRL.A. 415/2004 3 Additional Sessions Judge, on appraisal of the evidence, arrived at a conclusion of guilt, consequent to which the appellant was convicted and sentenced as stated above. 3. PW.1, the detecting officer would depose that on 11.6.1999, while on patrol duty he got information that dealings in contraband was going on at Vellarampadam. So he proceeded to the spot and found that the appellant, who was peddling a bicycle, coming across them. Seeing PW.1 and party, the appellant left the bicycle and took to his heels. Though the Excise party chased him, he could not be caught out. Over the carrier of the bicycle M.O.1 with ten litres of liquor was found. The contents of the same was tested by smell and taste and convinced that it was illicit liquor. In a plastic bag, the shirt of the appellant was kept. Inside the pocket of the shirt, there was Ext.P2 identity card. M.O.2 is the shirt. The contraband along with other material objects were seized for which Ext.P1 mahazar was prepared. 4. PW.2 would depose corroborating with the evidence adduced by PW.1. PW.2 would further depose that though he chased the appellant, the appellant could not be caught as he was not wearing shirt and there was drizzling. The evidence of PWs 1 and 2 would show that the appellant was familiar and was known to them even by name. Though PW.1 called the CRL.A. 415/2004 4 appellant to stop; he did not care and took to his heels. There is a vague suggestion in cross examination of PW.1 that PW.1 had registered a case against the relative of the appellant against which the appellant protested and that the case on hand was cooked up because of that enmity. However, the name of the relative of the appellant was not disclosed. Neither he was examined as a witness. No document relating to such case was produced. On a careful scrutiny of the evidence of PWs 1 and 2, I find that their evidence is mutually corroborating. Ext.P1 also corroborates with the evidence of PWs 1 and 2. 5. Learned counsel for the appellant submitted that no independent witness was examined. Going by Ext.P1, I find that the two independent witnesses and three Excise guards were attesters to Ext.P1 and one of the Excise guard was examined as PW.2 who had given supporting evidence. Therefore, the non examination of other independent witness is not at all fatal to the prosecution. I find that the evidence of PWs 1 and 2 are creditworthy. 6. The evidence of PW1 would show that the sample was forwarded to the Chemical Examiner, who, by Ext.P7 certificate, certified that the sample contained 42.67% by volume of ethyl alcohol. The correctness of Ext.P7 certificate was also not assailed. Therefore, I find that the learned CRL.A. 415/2004 5 Additional Sessions Judge had correctly appraised the evidence and rightly arrived at a conclusion of guilt which is unassailable. 7. Having due regard to the nature and quantity of the contraband, I find that the appellant is entitled to a little leniency and that a sentence of simple imprisonment for nine months with fine as aforesaid would meet the ends of justice. In the result, the appeal is allowed in part. While confirming the conviction, the substantive sentence is reduced to simple imprisonment for nine months. The fine imposed is sustained with a default sentence of simple imprisonment for three months. The trial court shall see the execution of sentence and report compliance. P.S. GOPINATHAN, (JUDGE) knc/-