IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 CRL.A.No. 1545 of 2003() ----------------------------------- SC.127/2000 of ADDL. DISTRICT & SESSION COURT FAST TRACK-I, MANJERI .................... APPELLANT/ACCUSED --------------------------------- KURIAKOSE, S/O.VARGHESE, PUTHIYAPARAMBATH VEETTIL, ERUMAMUNDA, KURUMBALANGODE, NILAMBUR, MALAPPURAM DISTRICT. BY ADV. MR.BABU S. NAIR RESPONDENT/STATE ------------------------------ THE STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, NILAMBUR EXCISE RANGE - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY PUBLIC PROSECUTOR MR.C.M. NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1545 OF 2003 = = = = = = = = = = = = = = = Dated this the 6th day of August, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed by the Addl. District and Sessions Judge, Fast Track Court-I, Manjeri in S.C.127/00. The accused was charge sheeted for the offence u/s 8 (1) of the Abkari Act and was convicted and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for a period of one year. It is against that decision the present appeal is filed by the accused. 2. The points that arise for determination in the appeal are; (1)Whether the materials are sufficient to hold that the accused has committed the offence u/s 8(1) of the Abkari Act? (2) In case of guilt, is the sentence imposed excessive? Crl.A. 1545 OF 2003 -2- Points: 3. Heard the learned counsel for the appellant as well as the prosecution. The learned counsel for the appellant also very strongly contends before me that the evidence available is not adequate to convict the accused. There has been no proper sampling or sealing and lastly the material objects had reached the analysis laboratory only after three or four weeks from the date of it being sent. It is the case of the prosecution that on 11.1.1999 at about 12.30 p.m. the accused was found in possession of 5 litres of illicit arrack in a Can. He was intercepted and examined and on search was found to be in possession of 5 litres of illicit arrack. The sample was taken and it was sealed and thereafter further proceedings continued. 4. PW1 is the person who had laid the charge on the date of incident. He had deposed before Court, at about a distance of 50 meters from a shop they saw the accused and they followed him and restrained him. They examined him and found him carrying a Can of 10 litre capacity which on examination revealed containing 5 litres of illicit arrack. It is also stated that the sample was taken in a 180 ml bottle and it Crl.A. 1545 OF 2003 -3- was sealed. In the cross examination so many questions were put with respect to the shop rooms etc. but it is not of much significance in this case. PW1 has specifically stated that the seal was done by one Vasudevan and the seal in the bottle was JMJ. Then a suggestion was put why it was not sealed on the top but on the side etc. PW2 is the said Vasudevan. He had also spoken about the accused person, searching, sampling and sealing and his signature in Ext.P2. He had also been cross examined at length and he had deposed before Court that the accused had signed in the label and the label was not pasted on the top of the Can. He had also spoken about the seal used for the same. So the evidence of PWs.1 and 2 though attempted to be challenged on the ground that there are gross inconsistencies or material contradictions, I am not able to find out any such contradictions of that nature so as to throw away their evidence. The factum that both of them had been a part and parcel of the party had found the accused, intercepted him, had taken the Can from the possession of the accused. It can also be seen from the records available immediately on the next day, i.e. on 12.1.1999 the material objects were produced before court. Crl.A. 1545 OF 2003 -4- Therefore the evidence of PW1 and PW2 does give confidence to the conscience of the court to accept them. 5. It is true that independent witnesses had turned hostile. Turning of hostile by independent witnesses was a subject matter for discussion in the decision reported in Sivaraman v. State of Kerala (1981 KLT S.N. Case No.17 page 9) wherein it is observed that it has become a habit for the independent witnesses to turn hostile for the reasons best known to them. The court also held that in a such situation how one is to analyze the evidence of the official witnesses. The court held that the evidence of the official witnesses has to be put to meticulous scrutiny to find out the correctness of the same. Here as stated by me earlier the evidence of PWs.1 and 2 are trustworthy. They have no axe to grind against the accused. They were only performing their duty as contemplated by law. The sample was taken and it was produced before Court on the very next day. So these are all clear circumstances which would indicate the correctness of their evidence. Just because the labeling was done on a particular part of the bottle or the Can one cannot throw away that evidence on that small insignificant facts. Further the Crl.A. 1545 OF 2003 -5- chemical analysis report also would show that the bottle was perfectly in tact and found tallied with the sample seal provided. The percentage of ethyl alcohol present was 32.99%. It is true that it had reached the laboratory only on 4.2.99. It has to be remembered the date referred to as 12.1.99 is the request made by the Excise Officials for forwarding it. There would have been some usual delay from the Court and since the bottle is in tact and the mere delay of a week or 10 days will not matter in a case of this nature. Therefore I agree with the finding of the learned Sessions Judge that the accused was carrying 5 litres of illicit arrack and thereby has committed the offence punishable u/s 8 of the Abkari Act. 6. Now turning to the question of sentence. The learned Sessions Judge had been very harsh on the accused by sentencing him to imprisonment for five years and to undergo the default sentence of one year. Quantity of liquid in his possession was 5 litres. He had a large family to be looked after and taking into consideration all these aspects I am inclined to reduce the sentence to that of four months simple imprisonment and the default sentence to, 2 months Crl.A. 1545 OF 2003 -6- imprisonment. In the result the Crl.Appeal is disposed as follows: 1) Finding of guilt u/s 8 of the Abkari Act is sustained. 2) The sentence is modified and the accused is sentenced to undergo rigorous imprisonment for a period of four months and to pay a fine of Rs.1,00,000/- and in default of which he is directed to undergo a further imprisonment for a period of two months. (3) He is also entitled to set off as contemplated under S.428 Cr.P.C. (4) The lower Court shall execute the sentence. M.N. KRISHNAN, JUDGE. ul/-