IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN MONDAY, THE 12TH DAY OF DECEMBER 2011/21ST AGRAHAYANA 1933 CRA.No. 332 of 2004 (A) ------------------- SC.214/2002 OF III ADDL. SESSIONS COURT (ADHOC) FAST TRACK COURT NO.I, THRISSUR [--------------- APPELLANTS/ACCUSED NOS. 1 & 2: ---------------------------------------------------- 1. MOHANAN, S/O. SUBRAMANIAN, PAZHAMPARAMBIL HOUSE ERIYAD, NEAR MARKET KODUNGALLUR. 2. RAJAN, S/O. ANDU, MAHAKKATHUPADI S.N.NAGAR, ERIYAD KODUNGALLUR. BY ADV.SRI.C.C.THOMAS (SR.) RESPONDENT/COMPLAINANT: -------------------------------------------- STATE OF KERALA, REPRESENTED BY THE C.I. OF POLICE KODUNGALLUR, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. REJI JOSEPH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12-12-2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn P.S.GOPINATHAN, J ---------------------------- Crl.A.NO.332 OF 2004 -------------------------- Dated this the 12th day of December, 2011. J U D G M E N T Appellants were convicted by the Addl. Sessions Judge, Adhoc-I, Thrissur in Sessions case No.214/2002 for offence under Section 55(a) of the Abkari Act and sentenced to rigorous imprisonment for one year and a fine of Rs.1,00,000/- with a default sentence of rigorous imprisonment for a further period of 6 months. Assailing the above conviction and sentence , this appeal is preferred. 2. I have heard Adv.Sri.Niresh Mathew on behalf of the appellants and Sri.Reji Joseph, the learned Govt. Pleader. Perused the judgment impugned as well as the evidence on record. 3. The second appellant is reported dead. No legal heir is brought on record. 4. The prosecution case is that at 1.30 A.M on 24-10-1999, while PW6, the Sub Inspector of Police, Kodungallore moving on patrol duty found the appellants travelling in an autorikshaw bearing registration No. KL.08/L 3016 driven by PW5. Being got suspicious, the autorikshaw was intercepted. On examination it was found that the Crl.A.NO.332 OF 2004 2 appellants were possessing two rexine bags in which there were 52 bottles of Indian Made Foreign Liquor. The appellants were arrested for which Ext.P8 arrest memo was prepared. Thondi articles were seized for which Ext.P1 seizure mahazar where in PW5 is an attester was prepared. Samples were taken and forwarded for chemical examination. By Ext.P3, chemical examination had the samples contained Ethyl Alcohol varying from 41.82 % to 42.40%. PWs3 and 4, two Asst. Sub Inspectors conducted the investigation. After completing the investigation, charge sheet was submitted for offence under Section 55(a) of the Abkari Act before the Judicial Magistrate of the First Class, Kodungallore. Since the offence alleged is exclusively triable by the Court of Session by order dated 30-04-2002, the case was made over to the Court of Session, Thrissur. From there the case was made over to the Additional Sessions Judge. 5. Responding to the process, the appellants entered appearance. They pleaded not guilty when the charge was framed and read over. Therefore, they were sent for trial. On the side of the prosecution, PWs1 to 6 were examined. Exts.P1 to P9 were marked. Appellants took a defence of total denial. No defence was let in. On Crl.A.NO.332 OF 2004 3 appraisal of the evidence trial court arrived at a conclusion of guilt. Consequently, they were convicted and sentenced as above. 6. PW6, the Sub Inspector had given evidence regarding the arrest and seizure of the appellants, preparation of Ext.P1 seizure mahazar, forwarding of the samples and receipt of the report of analysis. PW1, the Head Constable, accompanying PW6 had supported the evidence of PW6. PW5, the driver of the autorikshaw also would corroborate with the evidence of PWs1 and 6. The learned counsel for the appellants submitted that there was yet another person in the autorikshaw and no sooner the autorikshaw was stopped than he took to his heels. That suggestion was put to PWs1 and 6. They denied the suggestion. As such, there is little material to conclude that there was any other person in the autorikshaw. The learned counsel for the appellant also submitted that PW5 had given such an evidence. Going by the evidence of PW5, I could not find out any material to conclude that there was any other person as passenger in the autorikshaw or that he had ran away or that the appellants were not the persons in possessing of the liquor bottles. The evidence of Pws1 and regarding the arrest and seizure is credible as found by the trial court. In the Crl.A.NO.332 OF 2004 4 above circumstance, I find that the learned Addl. Sessions Judge had correctly apprised the evidence and rightly arrived at a conclusion of guilt. The conviction under challenge is unassailable . Taking note that the second appellant is now no more and that the first appellant is a coolie aged only 36 years, I find that the first appellant is entitled to a little leniency and that a substantive sentence of rigorous imprisonment for 6 months with the minimum fine imposed by the trial court would meet the ends of the justice. In the result, the appeal as regards the second appellant is dismissed as abated. As regards the first appellant, the appeal is allowed in part. While confirming the conviction, the substantive sentence is reduced to rigorous imprisonment for 6 months. The minimum fine imposed by the trial court is sustained with default sentence. The trial court shall see the execution of sentence and report compliance. P.S.GOPINATHAN, JUDGE amk