IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 CRL.A.No. 270 of 2003(C) ------------------------ SC.409/2001 of ADDL. SESSIONS COURT (ADHOC-III), FAST TRACK COURT-I, THRISSUR .................................................... APPELLANT(S): ACCUSED ------------------------------------- KOCHUKRISHNAN, S/O. KUTTAPPAN, PONNARASSERY HOUSE, CHOONDAL VILLAGE, DESOM, THALAPPILLY TALUK. BY ADVS. SRI.T.M.CHANDRAN SRI.S.SUJITH RESPONDENT(S): COMPLAINANT/STATE ---------------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SMT.M.K.PUSHPALATHA, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.270 OF 2003 -------------------------- Dated this the 7th day of July, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the conviction and sentence passed by the IIIrd Addl. Sessions Judge, Fast Track Court – I, Thrissur, in S.C.409/01. The accused was charge sheeted for an offence u/s.58 of Abkari Act and was convicted by the court and sentenced to undergo rigorous imprisonment for a period of 1 year and to pay a fine of Rs.1 lakh, in default of which simple imprisonment for a period of 3 months. It is against that decision the accused has come up in appeal. The points that arise for determination are, 1.Whether the evidence available, would establish the guilt of the accused u/s.58 of Abkari Act ? 2.Is there anything to interfere with the decision rendered by the court below ? 3.Whether the sentence is excessive ? 2. Points 1 to 3 :- All these points are answered together 2 CRL.A.No.270 OF 2003 for the sake of convenience. It is the case of the prosecution that on 19.11.99 at about 6.15 P.M. on the path way near the bus stop at Aasarippadi, the accused was found in a suspicious circumstance and on interception, search and seizure he was found to be in possession of 1 ltr. of illicit arrack in a 1 ½ capacity container and therefore he has committed the offence under the provisions of the Abkari Act. The prosecution had examined Pws.1 to 5. Exts.P1 to P4, M.O.1 and 2 were marked. Official witnesses are Pws.1 and 4. The detecting officer is PW1. While he was working as Preventive Officer of the Excise Range, while they were on patrol duty, they saw the accused walking through the road carrying a plastic cover in hand. He was intercepted, apprehended and when examined it was found that the plastic bag contained a bottle of 1 ½ ltr. capacity with 1 ltr. of arrack. Sample was taken in a 375 ml. bottle of 250 ml. It was sealed and he had also deposed that M.O.1 is the plastic bottle seized from the accused and M.O. 2 is the plastic cover. The label of M.O.s 1 and 2 are marked as 3 CRL.A.No.270 OF 2003 Exts.P10 and P11 respectively. PW4 is also another Preventive officer who had accompanied PW1 and he had also spoken about the way in which the apprehension, search, seizure and arrest has been done. He also spoken about the labelling. It is also seen that the accused was produced before the court on 20.11.1999 itself and material objects were also produced. The chemical examiner's report is marked as Ext.P8, which would show that the sample contained 46.77% by volume of ethyl alcohol. So the evidence of PW1, PW4 and the documents would reveal that the accused was in possession of 1 ltr. of arrack without the consent of any lawful authority, knowing that it was arrack. It is true that PW2 and PW3 are the independent witnesses who had turned hostile to the prosecution. As observed by this court in the decision reported in Sivaraman V. State of Kerala [1981 KLT, short note, page no.9, Case No.17], the independent witnesses in these type of cases turn hostile only to their best of knowledge and in that context the court considered, whether the evidence of the official witnesses 4 CRL.A.No.270 OF 2003 can be accepted to convict the accused. The court held that the only care which the court should take is to meticulously scrutinise and scan the evidence to find out their intrinsic reliability. If it is done and if it stands the scrutiny, the court can safely rely upon the evidence to convict the accused. As stated by me earlier Pws.1 and 4 had clearly deposed about the case and they have no axe to grind against the accused. Their evidence is natural and acceptable. Therefore I find that the conviction arrived at, by the court below is founded on legal materials which does not call for any interference. 3. So far as the sentence is concerned the quantity is hardly 1 ltr. of arrack. The accused is left with the responsibility of looking after his family. It is true that the possession of illicit arrack is a social menace and equally it has to be borne in mind that when people below poverty line resort to these type of illegal activities, the court has to strike a social balance. So taking into consideration these aspects, I am inclined to reduce the imprisonment to a period of 3 months and also a default 5 CRL.A.No.270 OF 2003 sentence of 1 month. Therefore the criminal appeal is disposed of as follows :- 1.The finding of guilt u/s.58 of Abkari Act is confirmed. 2.The sentence is modified and the accused is sentenced to undergo simple imprisonment for a period of 3 months and to pay a fine of Rs.1 lakh, in default of which to undergo further simple imprisonment for a period of 1 month. He is entitled to set off as contemplated u/s.428 of Cr.P.C. The lower court shall execute the sentence. M.N.KRISHNAN, JUDGE ami.