IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 11TH FEBRUARY 2009 / 22ND MAGHA 1930 CRL.A.No. 2721 of 2008() ------------------------ SC.191/2005 of ADDL. SESSIONS COURT, VADAKARA .................... APPELLANT: PETITIONER ------------------------ GOPALAN, C.NO.5820, CENTRAL PRISON, KANNUR. BY ADV. MS. NEEMA T.V., STATE BRIEF RESPONDENT : --------------------- STATE OF KERALA BY PUBLIC PROSECUTOR MR. V. TEKECHAND THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 11/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K. MOHANAN, J. ~~~~~~~~~~~~~~~~~~~~ Crl. Appeal No. 2721 OF 2008 ~~~~~~~~~~~~~~~~~~~~ Dated this the 11th day of February, 2009 JUDGMENT The sole accused in S.C. 191/2005 on the file of the court of the Additional District and Sessions Court, Vadakara is the appellant herein, who challenges his conviction and sentence under Section 8 (1) of the Kerala Abkari Act. 2. The appellant in pursuance to the impugned judgment is undergoing imprisonment and hence he preferred this appeal from the jail. 3. Prosecution case is that on 7.8.2002 at 12.00 noon at Velliyode amsom desom the accused was found in possession of 5 litres of illicit arrack in violation of the provisions of the Kerala Abkari Act and thereby committed an offence punishable under Section 8 (2) of the Abkari Act. On the basis of the said allegation crime 28/2002 registered in the Nadapuram Excise Range. After completing the investigation in the above crime, charge was laid before the Judicial First Class Magistrate Court, Nadapuram wherein C.P. 147/2004 was instituted. The learned Magistrate by his order dated 29.1.2005 case was committed to the Sessions Crl. Appeal No.2721 of 2008 : 2 : Court, Kozhikkode from where the case is made over to the present court for trial. After hearing the accused and the prosecution a formal charge was framed under Section 8 (1) of the Abkari Act which read over and explained to the accused and he pleaded not guilty. Thus the trial was continued and during which Pws1 to 6 were examined and Ext.P1 to P7 were marked from the side of the prosecution. M.O.1 is identified and marked as material object. The incriminating circumstances, which brought on record during the prosecution evidence, when put to the accused under Section 313 of Cr.P.C., he denied the same. No evidence was adduced from the side of the defence. Finally, the court below found that the accused is guilty of the charge levelled against him. After hearing the accused on the question of sentence, the court below sentenced him to undergo Rigorous Imprisonment for a period of 2 years and to pay a fine of Rs.1,00,000/-. The default sentence is fixed as six months Rigorous Imprisonment. Set off is allowed. It is the above finding, conviction and sentence are challenged in this appeal. 4. As the appellant is undergoing imprisonment, and the appeal is preferred from the jail, Advocate Neema T.V. appointed as state brief. Thus, I have heard the learned counsel Crl. Appeal No.2721 of 2008 : 3 : appearing as the state brief and also the learned Public Prosecutor. 5. In order to substantiate the above allegation, the prosecution mainly relies upon the evidence of PW1 and 2. PW1 is the preventive officer attached to the Excise Range of Nadapuram. According to him, when himself and party was conducting patrol duty in Nidumparamb of Valliyode amsom desom on 7.8.2002 he found that the accused at about 12'O clock coming with a 10 litre capacity can and on inspection it was found to contain 5 litres of illicit arrack. The accused was arrested on the spot and the sample taken and bottle was sealed and affixed with label and material objects were taken into custody as per Ext.P1 seizure mahazar. Ext.P2 is the crime and occurrence report, Ext.P3 is the property list and Ext.P4 is the arrest memo. Ext.P1 to Ext,P4 were marked through PW1. He had also identified M.O.1 can containing the balance quantity of illicit arrack. Though Pw1 was cross examined extensively nothing was brought out to discredit his version. He had stated that property was produced before the court on 9.8.2002 as the time they reached in the Excise office after the patrolling was at about 5.30 P.M. The suggestion to PW1 is that accused was arrested when he was crossing thodu for taking bath. PW2 is the another preventive officer who accompanied Crl. Appeal No.2721 of 2008 : 4 : PW1 during the patrol duty at the time of seizure. PW2 also deposed in tune of the deposition made by PW1. PW2 also though subjected to lengthy cross examination nothing was brought on record in favour of the defence. PW3 is an attester to Ext.P1 seizure mahazar. Though PW3 admitted his signature in Ext.P1 seizure mahazar, he turned hostile to the prosecution. PW4 is the Village Officer of Vanimel village through him Ext.P6 location certificate was marked. PW5 is the Excise Inspector who conducted the further investigation. PW6 is the property clerk attached to the Judicial First Class Magistrate Court, Nadapuram and he deposed that he had received property in the above case on 9.8.2002 as item No. 155/2002. Except the sample bottle the balance quantity in property was returned to the excise party for safe custody. On the basis of the above evidence and on materials the court below found that the prosecution has succeeded in establishing the case against the accused and accordingly he is found guilty under Section 8 (1) of the Abkari Act. 6. Challenging the above finding the learned counsel for the appellant submitted that except the interested version of official witnesses there are no independent witnesses to corroborate the evidence of official witnesses. It is to be noted that Crl. Appeal No.2721 of 2008 : 5 : the depositions of PW1 and 2, even though they are official witnesses, their testimonies are free from any sought of infirmities or discrepancies. Though PW1 and 2 were subjected to lengthy cross examination nothing was brought out to discredit their version. There is no rule that the evidence of official witnesses cannot be acted upon or admitted in the absence of independent evidence. The trial court itself considered the above question and on the basis of the law settled as per the decision reported in Suresh Vs State (1995(1) KLT 636), State of Kerala Vs. Choyiunni (1980 KLT 107), Dominique Vs. State of Kerala (1989 (1) KLT 601) and Sadanandan Vs. State of Kerala 1992 (1) KLT S.N. 22, the trial court found that the evidence of official witnesses such as PW1, the detecting officer and PW2 accompanying officer is free from blemishes and credible and therefore the same can be accepted in proof of arrest, search and seizure even though the independent witnesses turned hostile. 7. Another point raised by the appellant is that he was implicated in the above case because of animosity of the excise officials especially Pws1 and 2. According to him, when he reached in the excise range office one month prior to the date of occurrence in person, he was asked by the excise officials about Crl. Appeal No.2721 of 2008 : 6 : the persons who are involved in the illegal sales of illicit arrack and distillation etc. As he was not aware about it he did not comment it. It is for the said reason, according to the appellant, the excise officials impleaded him in the present case. Except the mere pleading, there is no material to advance and substantiate such pleadings. When the accused was questioned under Section 313 of Cr.P.C. no such plea was put forwarded by him. Apart from all those aspects now prosecution adduced the evidence regarding the actual seizure of illicit arrack from his possession and such seizure, arrest etc are supported by contemporaneous documents like Exts.P1 to P4 besides the evidence of PW1 ans 2. Therefore, the case of the appellant that he is implicated in the case because of animosity of the official witnesses cannot be believed even for a moment. In the light of the above facts and circumstances and the evidence on record, I find not illegality with the impugned judgment and therefore, the order of conviction arrived on by the court below is confirmed. 8. Regarding the sentence, it is submitted that a lenient view may be taken as the appellant is now at the age of 50 years and he has two grown up daughters who are now at the age of marriage. It is borne out from the records that the appellant is Crl. Appeal No.2721 of 2008 : 7 : the first offender and the prosecution has no case that he is involved in any another case like the present one. Considering the fact that accused/appellant is now at the age of 50 years and in the particular family background of the appellant, I am of the view that certain modification can be made with respect to the sentence. Accordingly, the substantial sentence is reduced and refixed as 15 months Rigorous Imprisonment. As the fine amount is fixed as the minimum statutory amount no interference is called for. But the default sentence can be reduced and refixed as one month instead of six months. Thus, the appellant is sentenced to undergo Rigorous Imprisonment for a period of 15 months and to pay fine of Rs.1,00,000/- and in case of default in payment of fine he is directed to undergo Rigorous Imprisonment for a further period of one month. Set off is allowed under Section 428 of Cr.P.C. 9. From the records, it appears that accused was arrested on 7.8.2002 and he was released on bail on 28.8.2002 and thereby he was in custody for 21 days as an under trial prisoner. The date of impugned judgment is 31.10.2007 and he is undergoing imprisonment pursuant to the said judgment from the date of judgment itself. Thus, now he had already undergone 16 months imprisonment including the period he had undergone as Crl. Appeal No.2721 of 2008 : 8 : under trial prisoner. Since set off is allowed and the appellant had already undergone the period as refixed and revised by this court, he is entitled to get released from the jail. Therefore, there will be a direction to release him forthwith, if he is not require in any other case. In the result, appeal is disposed of confirming the conviction but subject to above modification in respect of the sentence. V.K. MOHANAN, JUDGE kmd