IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 CRL.A.No. 83 of 2003() ----------------------------------- SC.254/2000 of IIIRD ADDL. SESSIONS COURT (ADHOC), THRISSUR .................... APPELLANT(S): IST ACCUSED ------------------------ RAJEEVAN, S/O. KUMARAN, PEENIKKA HOUSE, VELLIKULANGARA VILLAGE, KOPLILPADAM DESOM, MUKUNDAPURAM TALUK. BY ADV.D.ANIL KUMAR RESPONDENT(S): COMPLAINANT ------------------------- STATE OF KERALA, REPRESENTED BY C.I. OF POLICE, PUDUKKAD. BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CRL.MP. NO.533/2003 IN CRA. NO.83/2003 DISMISSED 28/07/2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE TSS M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 83 OF 2003 = = = = = = = = = = = = = = = Dated this the 28th day of July, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed by the 3rd Addl. Sessions Judge, Adhoc(Fast Track Court-I), Thrissur in S.C.254/00. The appellant who is the first accused in the case stood trial along with two other accused u/s 55(a) (i) and S.58 of the Abkari Act. A2 and A3 were acquitted and the appellant alone was convicted u/s 55 (a) and (i) and S.58 of the Act and was sentenced to undergo rigorous imprisonment for a period of two years and a fine of Rs.1,00,000/- and in default to undergo further rigorous imprisonment for a period of six months for the offences mentioned above. Set off was also allowed. It is against that decision the accused has come up in appeal. 2. The points that arise for determination are: (1)Whether the materials are sufficient to hold the accused guilty u/Ss. 55(a) and (i) and S.58 of the Abkari Act? Crl. Appeal NO. 83 OF 2003 -:2:- (2) In case of guilt, is the sentence excessive? Points 1 and 2: 3. Heard the learned counsel for the appellant as well as the Prosecutor. It is the case of the prosecution that on 31.5.98 at about 4. a.m. the first accused was found in possession of 20 packets of 375 ml each arrack in two plastic covers and he was apprehended, arrested, sample taken and proceeded against. The trial court found that the identity of the two accused is not properly established and acquitted him. So far as it relates to A3 it was held that the prosecution failed to prove that he was the driver of the auto rickshaw. The case is proceeded only against the first accused. The evidence in this matter is mainly that of PW1. PW1 is the person who had detected and investigated the case. It is deposed by him that very near Kodali junction they got information that illicit arrack was being sold and when they rushed to the spot they found the first accused with the polythene cover which contained the illicit liquor. The auto rickshaw which was parked nearby was searched and found it contained one packet of illicit arrack in its dash board. The auto rickshaw driver was also arrested. It Crl. Appeal NO. 83 OF 2003 -:3:- is submitted that the seizure mahazar was prepared and signed by him. According to him three packets were opened and samples were taken and that A1 and A3 were arrested at that point of time. He had been subjected to cross examination and he had deposed about the fact that he knew the accused even earlier. According to him the vehicle was parked on the road side and they proceeded and the accused were apprehended. He has also spoken about the putting of the label and seal with the mark 'V'. PW2 has not very much supported the case of the prosecution. PW3 is a police official who had gone for patrolling on the relevant date and he had deposed that one person was holding a cover and when it was examined it was found to be illicit arrack by taste and smell and thereafter the accused were arrested. He had been cross- examined at length but nothing material is brought out to discard the evidence. PW4 is the person who had conducted the investigation and laid the charge. PW5 has not supported the case of the prosecution and PW6 is the Village Officer. From the materials available it can be seen that accused numbers 1 and 3 were arrested and produced at 4 p.m. on Crl. Appeal NO. 83 OF 2003 -:4:- 31.5.98 and the material objects were produced before court on the very next day and the court retained the sample and returned other material objects. But unfortunately the other material objects could not be produced later because it had been lost on account of the factum of the passing of years. The sample which was taken was sent for chemical examination and the chemical examiner's report would reveal that the sample tallied with the sample seal provided and it was in tact. The chemical examination revealed that the sample contained 31.70% by volume of ethyl alcohol. Therefore from the materials available it can be seen that the first accused was apprehended, examined and on examination was found to be in possession of 20 packets of 375 ml. each. It is true that he was punished u/s 55(a) and (i) of the Act. In order to punish u/s 55(a) one has to find out that it was not in the process of import, export, transit or transport or possession. The possession must be while illegally transporting. He was not occupying the seat of the auto rickshaw at that time. So S.58 alone lie in this case. Since the sale aspect also is not there S.55(i) also will not lie. But Crl. Appeal NO. 83 OF 2003 -:5:- when a person is found to be in possession of 20 packets of 375 ml arrack certainly it will attract S.58 of the Act. It may be argued that in order to attract S.58 the factum of conscious possession must be there. When a person holds 20 packets containing liquor it can be easily inferred that the possession is only conscious. Therefore I feel justice can be done in this case by finding the guilt of the accused u/s 58 and setting aside the conviction u/s 55(a) and (i). 4. Now turning to the question of sentence. Learned counsel also very strongly contends before me that A1 alone is isolated and convicted and circumstances are there to show leniency on him. I feel certainly indulgence can be shown and justice can be met by reducing the sentence of imprisonment to that of six months with a fine of Rs.1,00,000/- and in default of fine to undergo simple imprisonment for a period of one month. 5. In the result the Crl.Appeal is disposed as follows: 1) Conviction and sentence passed u/Ss. 55(a) and (i) of the Abkari Act are set aside. Crl. Appeal NO. 83 OF 2003 -:6:- 2) The conviction u/s 58 of the Abkari Act is sustained. 3) 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/- and in default to undergo a further imprisonment of one month. Since he has already remitted Rs.25,000/- as fine I had reduced the default sentence making it clear that the said Rs.25,000/- remitted by him shall be credited to the account of the fine account and it shall not be reimbursed. 4) The accused is entitled to set off as contemplated under S.428 Cr.P.C. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 83 OF 2003 -:7:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 83 OF 2003 = = = = = = = = = = = J U D G M E N T 28th July, 2009