IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN TUESDAY, THE 20TH DAY OF DECEMBER 2011/29TH AGRAHAYANA 1933 CRA.No. 505 of 2004 ( ) =================== (AGAINST THE JUDGMENT IN S.C. NO. 409/2001 DT. 23.02.2004 PASSED BY THE COURT OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, VADAKARA) APPALENT/ACCUSED. =================== RAJAN, S/O,.THEYYAN, AGED 53 YEARS, KARIVATTATH HOUSE THIRUVALLOR AMSOM DESOM VADAKARA TALUK.. BY ADV.SRI.SUNNY MATHEW RESPONDENT/COMPLAINANT. =========================== STATE OF KERALA, THROUGH THE EXCISE RANGE INSPECTOR VADAKARA EXCISE RANGE REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR S.HYMA THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 20-12-2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jm P.S.GOPINATHAN, J ---------------------------- Crl.A.No. 505 OF 2004 -------------------------- Dated this the 20th day of December, 2011. J U D G M E N T The Additional Sessions Judge, Vadakara in S.C.No.409/2001on his file convicted that appellant for offence under Section 58 of the Abkari Act and sentenced to rigorous imprisonment for 2 years and a fine of Rs.1,00,000/- with a default sentence of simple imprisonment for one year. Assailing the above conviction and sentence, this appeal is preferred. 2. The prosecution case is that at 11-30 AM on 24-11-1997, while PW1, an Excise Inspector attached to the Vadakara Excise Circle, moving patrol duty with PW4, a Preventive Officer and party, found the appellant coming across near a river at Vellukara Desom in Thiruvallur Amsom with a jerry can, which is marked as MO1. Seeing PW1 and party, the appellant got puzzled. PW1 suspected that appellant might have been carrying some contraband. The appellant was intercepted. The contents in MO1 was inspected and found that it contained 2.5 litres of arrack. The nature of the liquid was Crl.A.No. 505 OF 2004 2 ascertained by smell and taste. The appellant was arrested for which Ext.P1 arrest memo was prepared. MO1 with the arrack was seized for which Ext.P2 seizure mahazar was prepared. From the liquid contained in MO1, 375 ml was taken as sample in a bottle and the bottle was sealed. PWs2 and 3, two independent witnesses and PW4 are attesters. Returning to the office, PW1 registered a case for which Ext.P3 occurrence report was prepared. The appellant was produced before the local Magistrate. Thondi articles along with records and Ext.P3 were produced before the Excise Range Office, Vadakara. PW7, a guard attached to the Excise Range Office took custody of the articles. On the next day, it was entrusted to PW5, the Excise Inspector. PW5 re-registered a case in the Range Office for which Ext.P6 occurrence report was prepared. He prepared Ext.P7 thondi list and forwarded the material object along with the sample and Ext.P8 forwarding note before the local Magistrate. Part of the investigation was conducted by PW5. Through court, the sample was forwarded to the Chemical Examiner, who by Ext.P10 report certified that the sample contained 22.11% by volume of Ethyl Alcohol. PW5 was succeeded by PW8 who completed the investigation and laid the charge sheet before the Crl.A.No. 505 OF 2004 3 local Magistrate. 3. On finding that the offence alleged is triable by a Court of Session, the case was committed to the Court of Session by order dated 13-06-2001. The Sessions Judge made over the case to the Additional Sessions Judge, Vadakara. The appellant who was later released on bail, responding to the process issued appeared before the Additional Sessions Judge. When charge was framed and read over the appellant pleaded not guilty. Therefore, he was sent for trial. On the side of the prosecution, PWs1 to 8 were examined. Exts.P1 to P10 and MO1 were marked. When questioned under Section 313 of the Code of Criminal Procedure, after closing the evidence for prosecution, the appellant took a defence of total denial. No defence evidence was let in. The learned Additional Sessions Judge on appraisal of the evidence arrived at a conclusion of guilt, consequent to which the appellant was convicted and sentenced as above. 4. I have heard Adv. Sri.S.R.Sreejith, appearing for the appellant and Smt.S.Hyma, the learned Govt. Pleader. Perused the impugned judgment and records. The learned counsel had taken me through the entire evidence on record. Crl.A.No. 505 OF 2004 4 5. PW1 had given evidence that on 24-11-1997, while he along with party moving on patrol duty, found the appellant coming across with MO1 along the banks of the river on the eastern side of the house of the accused. Seeing PW1 and party, the appellant got puzzled. Suspecting that MO1 would contain some contraband, the appellant was intercepted. The contents in MO1 was tested by smell and taste and satisfied that it is nothing but 2.5 litres of illicit arrack. The appellant was arrested. The contraband was seized. 375 ml was taken in a sample bottle which was sealed then and there in the presence of the witnesses. PW4, who was accompanying PW1, had given evidence corroborating with the evidence of PW1. PWs2 and 3, two local witnesses had admitted their signature in Ext.P2. Of course, they had denied of seeing the appellant or seizure of MO1 while signing Ext.P2. On a critical analysis of the evidence of PWs1 to 4, I find little reason to disbelieve PWs1 and 4 regarding the arrest and seizure of the appellant. It appears, as stated by the prosecution, that Pws 3 and 4 were over by the appellant. The fact that Pws2 and 3 did not support the arrest or seizure is not a reason to reject Ext.P2, especially when there is no motive alleged against PW1, who prepared Crl.A.No. 505 OF 2004 5 Ext.P1. By the evidence of Pws 1 and 4 supported by Ext.P2 arrest and seizure is established. The trial court had correctly appreciated the evidence of PWs 1 to 4. 5. The evidence of PW1 coupled with the evidence of PWs 5 to 7 would show that on the same day MO1 and the sample were produced before Excise Range Office and it was taken custody by PW7 who was keeping the same in safe custody for the day. On the next day it was handed over to PW5, who produced the same before the local Magistrate along with Ext.P7 property list and Ext.P8 forwarding note. The sample was then sent for chemical examination. By Ext.P10, the Chemical Examination had reported that the sample contained 22.11 % by volume of Ethyl Alcohol. There is no reason to reject Ext.P10. No error or illegality is revealed out by the evidence of PWs5 and 8 who investigated the case so as to disbelieve the prosecution story. There is no delay in forwarding the sample and material object. There is no material to come to a conclusion that the sample was any way tampered. In the above circumstance, I find that the trial court was correct in coming to a conclusion that the liquid that the appellant was carrying in MO1 was nothing but illicit arrack. The conviction under Crl.A.No. 505 OF 2004 6 challenge is based upon cogent evidence and requires no interference. 6. The appellant was aged 47 years as on the date of arrest and seizure. Now, the appellant is aged 61 years. Taking in to account of the age and that there is no bad antecedent reported, I find that the appellant is entitled to a little leniency in sentence and that a sentence of rigorous imprisonment for six months with the minimum fine imposed by the trial court would meet the ends of justice. In the result, this appeal is allowed in part. While confirming the conviction, the substantive sentence is reduced to rigorous imprisonment for six months. The fine imposed is sustained with a default sentence of rigorous imprisonment for 6 months. The trial court shall see the execution of sentence and report compliance. P.S.GOPINATHAN, JUDGE amk