IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 CRL.A.No. 117 of 2011(D) ----------------------------------- SC.185/2009 of SESSIONS COURT, KALPETTA .................... APPELLANT(S): APPELLANT ------------------------------------------ THANKAPPAN,S/O.NARAYANAN, CONVICT NO.8733, CENTRAL PRISON, KANNUR. BY ADV. ARUNKUMAR K.S.[STATE BRIEF] RESPONDENT(S): -------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SMT. LALIZA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/11/2011 , THE COURT ON 03/11/2011 DELIVERED THE FOLLOWING: STU V.K.MOHANAN, J. ------------------------------- Crl.A.No.117 of 2011 ------------------------------- Dated this the 3rd day of November, 2011. The appellant herein is the sole accused in S.C.No.185 of 2009 of the court of Sessions Judge, Wayanadu, Kalpetta and in this appeal he challenges his conviction and sentence imposed against him under Section 8(1) and (2) of the Abkari Act vide judgment dated 2.11.2010, in the above case. 2. The case of the prosecution is that, on 8.7.2007 at 2 p.m. the accused possessed 4 ½ ltrs. of illicit arrack for sale at his house bearing No.III/503 of Sulthanbathery panchayat and thereby the accused has committed the offence punishable under Sections 8(1) and (2) of the Abkari Act. On the basis of the above allegation, Crime No.44 of 2007 was registered in the Excise Range office- Sulthanbathery, for the said offence. After investigation report was filed in the court of Judicial First Class Magistrate-I, Sulthanbathery, and as per the order dated 20.7.2009, in C.P.No.67 of 2009, the learned Magistrate 2 Crl.A.No.117 of 2011 committed the case to the Sessions court which was taken on file as S.C.No.185 of 2009. On the appearance of the accused and after hearing the prosecution as well as the accused, a formal charge was framed against him for the offence under Sections 8(1) and (2) of the Abkari Act, which when read over and explained to the accused, he pleaded not guilty. Consequently, the prosecution adduced its evidence by examining Pws.1 to 6 and producing Exts.P1 to P12. M.O.(1) black can is identified and marked as material object. The trial court after considering the materials and evidence has found that, the prosecution has succeeded in proving the offence alleged against the accused and accordingly he is found guilty of the offence under Sections 8(1) and (2) of the Abkari Act and convicted thereunder. On such conviction, the accused is sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1 lakh and in default of payment of fine, he is directed to undergo simple imprisonment for a further period of 3 months. Set off was allowed. It is the above finding and order of conviction and sentence are 3 Crl.A.No.117 of 2011 challenged in this appeal. 3. As the appellant is undergoing imprisonment in pursuance to the above judgment, he had preferred this jail appeal and on receiving the same, as directed by this Court, the Registry has appointed Adv.Sri.Arun Kumar K.S. from the panel of State Brief to prosecute the appeal for and on behalf of the appellant. Thus I have heard Sri.Arun Kumar K.S., the learned counsel for the appellant and the learned Public Prosecutor. 4. The learned counsel for the appellant vehemently submitted that, the findings of the court below and the conviction and sentence imposed against the appellant are unsustainable and liable to be set aside since the same are not supported by any legal evidence. According to the learned counsel, the learned Judge of the trial court ought to have found that the prosecution has miserably failed to prove the case beyond reasonable doubt. According to the learned counsel, the evidence available on record are not sufficient to establish that the accused has committed the offence as charged against him. In support of the above 4 Crl.A.No.117 of 2011 argument, learned counsel has pointed out that though several persons were accompanied PW1, PW2 alone was cited and examined. In the absence of any scrutiny regarding the log-book of the vehicle and the duty of Pws.1 and 2, their evidence cannot be accepted. It is also the mere submission of the learned counsel that, Ext.P3 cannot be believed since no details are given by the prosecution. According to the counsel, the prosecution has failed to establish the ownership of the building from where the contraband article was allegedly seized. It is also the submission of the learned counsel that there is delay in producing the material as well as the accused in the committal court. According to the learned counsel, the evidence of Pws.2, 4 and 5 cannot be believed as the same are devoid of any merit. Thus according to the learned counsel, the conviction and sentence imposed against the appellant is liable to be set aside. 5. On the other hand, the learned Public Prosecutor submitted that the evidence of Pws.1 and 2 proves the seizure of the contraband article from the possession of the 5 Crl.A.No.117 of 2011 accused and his arrest from the spot and those facts are substantiated by the contemporary documents, especially Exts.P1 to P7. Thus according to the learned Public Prosecutor, the conviction recorded by the trial court is based upon the materials and evidence on record and as such no interference is warranted. 6. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the learned Public Prosecutor and I have perused the judgment of the trial court. I have gone through the evidence and the materials on record. 7. In the light of the findings of the court below and in view of the rival arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor, the only question to be considered is whether the trial court is correct and legal in its finding that the accused has committed the offence punishable under Sections 8(1) and (2) of the Abkari Act. 8. On going through the materials and evidence on record, it can be seen that in order to substantiate the 6 Crl.A.No.117 of 2011 allegation of the prosecution against the accused, the prosecution mainly depends upon the evidence of Pws.1 and 2. PW1 is the then Excise Inspector of the Sulthanbathery Excise Range and as per his evidence, when himself and party were on patrol duty on 8.7.2007, they reached at Pazhappathur junction and he had seen 3-4 persons and according to him, that persons stopped the vehicle and informed him that the accused was selling arrack in his house. According to him, on receiving such information he had prepared Ext.P3 search memo and sent the same to the court through Excise Guard, CW4 and thereafter, himself and party proceeded to the house of the accused, bearing No.III/503 of Sulthanbathery panchayat and he found the accused at the court yard of the house and on interrogation of the accused, he furnished his name and address and thereafter himself and party went inside the house and conducted search and consequently, found out a black can of 5 ltrs. capacity, on the northern corner of the kitchen room and the content of the can was identified by taste and smell as illicit arrack. Thereafter, 7 Crl.A.No.117 of 2011 the accused was arrested and the contraband articles were seized and he had drawn samples in the presence of an independent witnesses and the entire proceedings were described in Ext.P1 mahazar. According to PW1, he had obtained signature of the accused and the witnesses, and affixed label with his signature on the sample bottles. According to PW1, thereafter he himself and party reached in the Excise range office along with the accused and contraband article, and registered C.R.No.47 of 2007 vide Ext.P2 occurrence report. During his examination, the prosecution has got marked Ext.P1 mahazar, Ext.P2 crime and occurrence report, Ext.P3 search memo, Ext.P4 arrest memo, Ext.P5 notice of arrest to the wife of the accused, Ext.P6 search list and Ext.P7 property list. He had also identified M.O.(1) can and the signature that contained on M.O.(1) label. He had also identified the accused in the box. 9. When PW2, who is the Excise Guard and who accompanied PW1 at the time of the detention of the crime, was examined and he had deposed in tune with the 8 Crl.A.No.117 of 2011 deposition of PW1. Though PW3 is an occurrence witness and an attestor to Ext.P1 mahazar, he turned hostile and he denied the signature in Ext.P1 and M.O.(1) label. PW4 is the officer who prepared Ext.P9 scene plan on the basis of the scene mahazar. PW5 also identified Ext.P10 certificate issued from the office showing that the building stands in the name of Ambalappully Vilasini. PW5 is an active worker of Anti Narcotic Samithi who witnessed the entire incident. During his examination, he had deposed in terms of PW1 regarding the incident and he had admitted his signature in Ext.P1 and M.O.(1) and Ext.P11 scene mahazar. PW6, the Excise Inspector Sulthanbathery, was examined to prove Ext.P12 chemical analysis report. It is the above evidence and materials which forms the basis for the finding and conviction imposed against the appellant. Though the learned counsel for the appellant taken several contentions which I indicated earlier, none of his contentions are substantiated since the evidence and materials on record positively proves the prosecution case and repelled the contentions advanced on behalf of the 9 Crl.A.No.117 of 2011 appellant. Though Pws.1 and 2 were subjected to lengthy cross examination, nothing brought on record to disbelieve their versions. In the present case it is relevant to note that, though PW3 an attester to Ext.P1 turned hostile, the evidence of Pws.1 and 2 are supported by the evidence of PW5, another independent witness, who is an active worker of Anti Narcotic Samithi. From the evidence of PW1 it can be seen that, PW1 and party arrived at the place of occurrence on the basis of the information received by him from the persons, who were gathered and found while he was on patrol duty. Ext.P3 search memo was proved through PW1. According to PW1, when he received the information after preparing Ext.P3 and sent the same to the court, he proceeded to the spot and consequently effected the seizure. The above evidence of PW1 was supported by another official witness PW2, is stand corroborated by the evidence of PW5, the independent witness. Moreover, the contemporary documents of Exts.P1 to P7 also render assurance for the credibility of the evidence of Pws.1 and 2. As the evidence of Pws.2 and 10 Crl.A.No.117 of 2011 5 are remained intact, all the contentions advanced by the counsel for the appellant are liable to be discarded because the evidence of Pws.1, 2 and 5 are free of any infirmities and sufficient to inspire the confidence of the court. 10. In the light of the above facts, evidence and materials and the discussion, I am of the view that, the trial court is fully justified in its finding that the prosecution has succeeded in proving the offence against the accused in S.C.No.185 of 2009 of the court of Sessions Judge, Wayanad, Kalpetta and accordingly, the conviction recorded by the trial court against the accused is confirmed. 11. Regarding the sentence, learned counsel submitted that a lenient view may be taken, since the quantity of arrack involved in this case is only 4 ½ ltrs. According to me, the above submission is not sufficient to interfere with the substantial sentence ordered against the appellant. From the facts proved by the prosecution it can be seen that, the appellant was found engaged in the sale of illicit arrack in his own house but the court below has 11 Crl.A.No.117 of 2011 imposed only a sentence of one year rigorous imprisonment. Therefore, no interference is warranted with respect to the substantial sentence. But it is relevant to note that, the accused is at the age of 63 years and therefore according to me, while confirming the substantial sentence as well as the sentence to pay fine, the default sentence can be modified and reduce into one month simple imprisonment. In the result, this appeal is dismissed confirming the conviction of the petitioner/appellant under Section 8(1) and (2) of the Abkari Act vide judgment dated 2.11.2010 in S.C.No.185 of 2009 of the court of Sessions Judge, Wayanad, Kalpetta, and also the substantial sentence of one year rigorous imprisonment for the said offence. While confirming the sentence to pay fine of Rs.1 lakh, the default sentence imposed by the trial court is modified and reduced into one month simple imprisonment. The appellant is entitled to get set off under Section 428 of Cr.P.C. Subject to the above modification with respect to the default sentence alone, this appeal is dismissed as it is 12 Crl.A.No.117 of 2011 devoid of any merit. The Registry is directed to forward the Gist of this judgment to the Superintendent, Central Prison, Kannur, for appropriate action, especially in the proceedings received from the Central Prison, Kannur, along with the jail appeal particularly in the Nominal Roll of male, it is stated under column No.9, with respect to the sentence as, “simple imprisonment for 2 years and a fine of Rs.1 lakh” and under column No.11, the unexpired term of sentence, after deducting remission earned, is shown as 8.8.2012 and 8.2.2013 (fine). Probably the above date are fixed on the erroneous understanding that the sentence is for 2 years as seen endorsed in column No.9 of the Nominal Roll of male and as such it is for them to make appropriate correction and to take proper action. V.K.MOHANAN, Judge ami/