IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 CRL.A.No. 1323 of 2003() --------------------------------- SC.49/2000 of ADDL.SESSIONS COURT (ADHOC I), KASARAGOD .................... APPELLANT(S): ACCUSED: ---------------------- AITHAPPU NAIK, AGED 50 YEARS, S/O. NARAYANA NAIK, ANCHALAM DESOM, KALLAR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SMT.K.SEENA RESPONDENT(S): COMPLAINANT AND STATE: ---------------------------- 1. EXCISE CIRCLE INSPECTOR, HOSDRUG RANGE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1323 OF 2003 = = = = = = = = = = = = = = = Dated this the 22nd day of July, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed in S.C.49/00 by the Addl. Sessions Judge, Adhoc-I, Kasaragod. The accused was charge sheeted for an offence u/s 55(g) of the Abkari Act and convicted thereunder and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/- and in default to undergo 6 months imprisonment more. It is against that decision the accused has come up in appeal. 2. The point that arises for determination are; (1)Whether the materials are sufficient to hold the accused guilty u/s 55(g) of the Act? (2) In case of guilt whether the sentence awarded is excessive? Points 1 and 2: 3.. Perused the documents and affidavits and heard the learned Public Prosecutor. It is the case of the prosecution Crl. Appeal NO. 1323 OF 2003 -:2:- that on 23.6.1998 when PW1 was on patrol duty they saw the accused walking in a direction with an aluminum vessel. On seeing the party he became perplexed and therefore he was intercepted and examined and it was found that the vessel contained a brownish liquid which on taste and smell was found to be wash used for the purpose of manufacturing alcohol. Thereafter sample was taken in a 750 ml bottle of 500 ml of wash. The accused was arrested and produced before court. In the trial court PWs.1 to 3 were examined Exts.P1 to 5 and MO1 were marked. PW1 is the person who had detected the offence. He had deposed before court that the incident had taken place as alleged by the prosecution was on 23.6.1998, the accused was apprehended and on examination was found carrying 15 liters of wash. Sample of 500 ml was taken in a 750 ml bottle and it was tied with a cloth and sealed. In the cross examination attempts were made to point out regarding the distance and the actual place but nothing serious has been brought out in the cross- examination of PW1 in this case. PW2, an independent Crl. Appeal NO. 1323 OF 2003 -:3:- witness as usual had turned hostile and PW3 is the person who had conducted further investigation. He had stated that the material object was produced before court on 30.6.98 and till that time it was in his safe custody. The court had received the sample and entrusted the container to be retained by the Excise officials. The chemical analysis report would reveal that sample bottle was in tact and it is seen tallied with the sample seal provided. The delay of six days cannot be said to be prejudicial to the accused in this case for the reason that the sample was produced before court on the same condition in which it was taken and PW3 had spoken that it was in his safe custody. 3. So far as the independent witnesses are concerned this court in the decision reported in Sivaraman v. State of Kerala (1981 KLT S.N. Case No.17 page 9) has held that it has become a practice that independent witnesses turned hostile for the reasons best known to them and the court held that if the evidence of the official witnesses on meticulous scrutiny is found to be intrinsically reliable then there is Crl. Appeal NO. 1323 OF 2003 -:4:- nothing wrong in accepting the same. As discussed by me earlier it is proved that it was the sample which was taken that was produced before court which in turn had been sent for chemical analysis and the chemical analysis report revealed that it contained 10.21% by volume of ethyl alcohol. The evidence of PW1 is trustworthy and therefore I do not find any error committed by the Court below in finding the accused guilty u/s 55(g) of the Abkari Act. It is confirmed. 4. So far as the sentence is concerned the accused was found to be in possession of 15 liters of wash. It is true that it is a material used for the manufacture of illicit arrack. On 313 examination the accused has deposed before court that he had got aged mother and children to be looked after and he had pleaded for mercy. Taking into consideration the poor status of the appellant/accused and other circumstances I am inclined to reduce the sentence of imprisonment to six months and the default sentence to 2 months. Crl. Appeal NO. 1323 OF 2003 -:5:- 5. In the result the Crl.Appeal is disposed as follows: 1) Finding of guilt u/s 55(g) of the Abkari Act is sustained. 2) The sentence is modified and the accused is sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.1,00,000/- on default of which he is directed to undergo a further imprisonment of two months. (3) He is also entitled to set off as contemplated under law and the lower court shall execute the sentence. M.N. KRISHNAN, JUDGE. ul/-