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. 1209 of 2003 (A) ==================== (AGAINST THE JUDGMENT IN S.C. NO. 27 OF 2002 ON THE FILE OF THE III ADDL. SESSIONS JUDGE, (ADHOC) FAST TRACK COURT, NO. II, THRISSUR) DT. 26.6.2003) APPELLANT/ACCUSED ==================== SUBHASH, S/O KUNJUMON, POONGATTIL HOUSE, THRISSUR VILLAGE, THALAPPALLY TALUK BY ADV.SRI.C.HARIKUMAR RESPONDENT ============= STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA 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. 1209 OF 2003 -------------------------- Dated this the 14th day of December, 2011. J U D G M E N T The IIIrd Additional Sessions Judge, Thrissur in S.C.27/2002 on his file by the impugned judgment dated 26-06- 2003 convicted the appellant for offence under Section 58 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 3 months. Assailing the above conviction and sentence, this appeal is preferred. 2. The prosecution case is that at 11-30 AM on 05- 06-1997 at Thali Desam near the house of Chittilamparamba Vijayan, the appellant was found possessing 750 ml of arrack when PWs1 and 4, two Preventive Officers attached to the Excise Office, Vadakkanchery were moving on patrol duty. PWs1 and 4 arrested the appellant and seized the contraband liquid for which Ext.P1 seizure mahazar was prepared. The crime and occurrence report was registered by Ext.P2. From out of the liquid contained Crl.A. NO. 1209 OF 2003 -:2:- in the bottle, 180 ml was taken as sample and the sample were forwarded for chemical examination. By Ext.P5, the Chemical Examiner reported that the sample contained 15.43 % by volume of Ethyl Alcohol. PW5, the Excise Inspector conducted the investigation and submitted the charge sheet before the Judicial Magistrate of the First Class - I, Vadakkanchery. On finding that the offence alleged is exclusively triable by a Court of Session, by order date 11-12-2001, the case was committed to the Court of Session, Thrissur. From there, it was made over to the Additional Sessions Judge. 3. Before the Additional Sessions Judge, the appellant pleaded not guilty, when the charge was framed and explained. Therefore, he was sent for trial. On the side of prosecution, PWs1 to 6 were examined. Exts.P1 to P6 and MOs1 and 2 were marked. After closing the evidence for prosecution, the appellant was questioned under Section 313(1)(b) of the Code of Criminal Crl.A. NO. 1209 OF 2003 -:3:- Procedure. The appellant took a defence of total denial. No defence evidence was adduced. On appraisal of the evidence, the Additional Sessions Judge came to a conclusion of guilt, consequent to which the conviction and sentence under challenge. 4. I have heard Adv. Smt.Asha, the learned counsel appearing for the petitioner and Smt.S.Hyma, the learned Govt. Pleader. Perused the judgment impugned and the evidence on record. 5. PWs1 and 4, the Detecting Officers. PWs2 and 3 are the independent witness, who are attesters to Ext.P1 seizure mahazar. PW5 is the Investigating Officer. PW6 is the Village Officer, who prepared Ext.P6 sketch. Though, PWs2 and 3 admitted their signature in Ext.P1, they did not support the prosecution regarding the arrest and seizure. That being the independent evidence, the available evidence is that of PWs1 and 4. I had carefully gone through the evidence of PWs1 and 4. They Crl.A. NO. 1209 OF 2003 -:4:- had given evidence in support of the prosecution case that while they were moving on patrol duty, they saw the appellant coming across them with a plastic bag, which is marked as MO2. Having got suspicious, the appellant was intercepted and the contents in MO2 was examined. MO1, a 750 ml bottle with full of liquid was found inside. When the contents in the bottle was tested, it was convinced that the liquid is nothing but illicit arrack. Therefore, it was seized for which Ext.P1 seizure mahazar was prepared. Ext.P3 is the property list. Ext.P4 is the remand report. Ext.P5 would certify that the sample forwarded was sealed. The seal was intact and tallied with the specific impression of the seal. In Ext.P5, it is further certified that the sample contained 15.43 % by volume of Ethyl Alcohol. As against Ext.P5, there is no challenge at all. The learned Additional Sessions Judge had well considered the evidence of PWs1 and 4 and arrived at a conclusion that there is no reason to disbelieve them. On a critical reappraisal, I find nothing Crl.A. NO. 1209 OF 2003 -:5:- but to concur with the learned Additional Sessions Judge. The only argument that was advanced by the defence is that there is no arrest memo and that MO1 bottle did not contain any label. That is not at all a reason to disbelieve PWs1 and 4 who withstood cross examination. Though, they were subjected to searching cross examination, no material is disclosed to disbelieve them. No material vitiating investigation or to show that the appellant was falsely implicated is disclosed. Therefore, I find that the conviction under challenge is based upon cogent evidence and requires no interference. 6. Regarding the sentence, taking note that the quantity involved is only 750ml and that the appellant was aged only 28 years, I find that a substantive sentence of rigorous imprisonment for 6 months would meet the ends of justice. The fine imposed is the minimum prescribed by the statute and requires no interference. Crl.A. NO. 1209 OF 2003 -:6:- In the result, the appeal is allowed in part. While confirming the conviction, the substantive sentence is reduced to rigorous imprisonment for six months. The fine imposed is sustained with the default sentence as ordered by the trial court. The trial court shall see the execution and report compliance. P.S.GOPINATHAN, JUDGE amk