IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN WEDNESDAY, THE 14TH DAY OF DECEMBER 2011/23RD AGRAHAYANA 1933 CRA.No. 2099 of 2004 (C) ===================== (AGAINST THE JUDGEMENT DT. 17.09.2004 IN SC.85/2003 of ADDL.DISTRICT AND SESSIONS JUDGE (FAST TRACK (ADHOC-II), KOZHIKODE) ACCUSED(S)/ACCUSED: =================== KRISHNAN, S/O. KANARAN, VADAKKEDATH MEETHAL (H) MODAKKALLOOR AMSOM KURUVALOOR DESOM KOYILANDY TALUK. BY ADV.SRI.SANTHARAM.P RESPONDENT/COMPLAINANT: =========================== STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SMT. S.HYMA THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14-12-2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jm P.S.GOPINATHAN, J ---------------------------- Crl.A. NO. 2099 OF 2004 -------------------------- Dated this the 14th day of December, 2011. J U D G M E N T The Additional Sessions Judge (Adhoc – II), Kozhikode in S.C.85/2003 by the impugned judgment dated 17-09-2004 convicted the appellant for offence punishable under Section 55(a) and Section 8(1) and (2) of the Abkari Act and sentenced to rigorous imprisonment for one and a half years and a fine of Rs.1,00,000/- with default sentence of simple imprisonment for 6 months. Assailing the above conviction and sentence , this appeal is preferred. 2. The prosecution case is that on 25-02-2000 at about 6.00 PM, while PW2, the Excise Inspector, Balussery along with PW3, a Preventive Officer and others were moving on patrol duty, found the appellant coming across, infront of a Ration shop bearing No.ARD.271 at Kunnathara, along the side of the Atholi Ulliyeri road. The appellant had a jerry can, which is marked as MO1, in his right hand. Seeing PW2 and party, the appellant attempted to hide Crl.A. NO. 2099 OF 2004 -:2:- MO1. PW2 got suspected. He alighted down from the jeep and intercepted the appellant. MO1 was inspected and found that it with 2.5 litres capacity and contained 1.5 litres of liquid. By smell and taste, it was convinced that the liquid was nothing but illicit arrack. Therefore, the appellant was arrested for which Ext.P2 arrest memo was prepared. The contraband was seized. From out of the liquid contained in MO1, 180 ml was taken as sample in a bottle. The sample bottle and MO1 with remaining quantity of liquid were sealed. Returning to the office, a case was registered, for which Ext.P4 crime and occurrence report was prepared. On the next day, the appellant was produced before the Magistrate along with Ext.P5 remand report. Material objects and sample were also produced before the Magistrate along with Ext.P6 property list and Ext.P7 forwarding note. The investigation was taken over by PW5, another Excise Inspector, who after completing the investigation, laid the charge sheet before the Crl.A. NO. 2099 OF 2004 -:3:- Judicial Magistrate of the First Class, Quilandy. On finding that the case is exclusively triable by a court of Session, the case was committed to the court of Session, Kozhikode. From there it was made over to the Additional Sessions Judge'. 3. The appellant, who was initially remanded to judicial custody, was subsequently released on bail. Responding to the process issued, he entered appearance before the Additional Sessions Judge. When the 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 5 were examined. Exts.P1 to P8 and MO1 were marked. After closing the evidence for the prosecution, the appellant was questioned under Section 313(1)(b) of the Code of Criminal Procedure. 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 conviction and Crl.A. NO. 2099 OF 2004 -:4:- sentence under challenge. 4. I have heard Adv. Smt.R.Leela, the learned counsel appearing for the appellant and Smt.S.Hyma, the learned Govt. Pleader. Perused the judgment impugned and evidence on record. 5. PW2, the Excise Inspector had given evidence in support of the prosecution case. According to him, while he moving on patrol duty, he saw the appellant coming across with MO1 in his right hand. Seeing PW2 and party, the appellant attempted to hide MO1. So, PW2 got suspected. He intercepted the appellant and examined the contents in MO1. MO1with a capacity of 2.5 litres contained 1.5 litres of liquid. By smell and taste it was found that the liquid was nothing, but illicit arrack. Therefore, he seized the same for which Ext.P3 seizure mahazar was prepared. Appellant was arrested. Ext.P2 is the arrest memo. Ext.P4 occurrence report, Ext.P5 remand report, Ext.P6 property list and Crl.A. NO. 2099 OF 2004 -:5:- Ext.P7forwarding note were also proved by PW2. The evidence of PW3 would corroborate with the evidence of PW2. PW4, the occurrence witness, of course did not support the prosecution. PW1, the Village Officer had proved Ext.P1 sketch. PW5 had proved the process of investigation and Ext.P8 report of the chemical examination wherein it is certified that the sample contained 26.49% by volume of Ethyl Alcohol. 6. Since PW4, the only independent witness examined did not support the prosecution case, the evidence of PWs2 and 3 were subjected to critical scrutiny. In fact, as observed by the Additional Sessions Judge there is no reason to disbelieve them. The learned counsel for the appellant argued that the search was conducted in violation of Section 36 of the Abkari Act. The evidence of PWs2 and 3 coupled with Ext.P3 would show that the search was conducted in the presence of two the independent witness. There is no suggestion in cross examination that there was Crl.A. NO. 2099 OF 2004 -:6:- no independent witness or that the search was any way vitiated. The fact that the independent witness cited by the prosecution turned hostile is not at all a reason to come to a conclusion that there is non compliance of Section 36 of the Abkari Act. Ext.P8 would certify that the sample forwarded was in sealed bottle. The seal was intact and tallied with the specific impression of the seal. The sample contained 26.49 % by volume of Ethyl Alcohol. The evidence of PW2 would also show that the appellant along with the material objects were produced before the committal court on the next day. There is no delay in producing the sample or there is nothing to conclude that the sample or the material objects were any way tampered with. In the above circumstance, I find that the learned Additional Sessions Judge had correctly analyzed the evidence and rightly come to a conviction of guilt. The conviction under challenge requires no interference. Crl.A. NO. 2099 OF 2004 -:7:- 7. Regarding the sentence, taking note that the quantity involved is only 1.5 litres of arrack and that the appellant is a coolie aged 55 years on the date of the crime, I find that a substantive sentence of rigorous imprisonment for 6 months with the minimum fine of Rs.1,00,000/-imposed by the trial court would meet the ends of the justice. In the result, 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 the default sentence. The trial court shall see the execution of sentence and report compliance. P.S.GOPINATHAN, JUDGE. amk