IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 10TH SEPTEMBER 2009 / 19TH BHADRA 1931 CRL.A.No. 1131 of 2002(C) ------------------------- SC.257/1999 of ADDL. SESSIONS COURT (ADHOC), KALPETTA .................... APPELLANT(S): ACCUSED --------------------- K.P.RAJAN, S/O. VAKARAN, NADAVAYAL AMSOM WAYANAD DISTRICT. BY ADV. SRI.SUNNY MATHEW RESPONDENT(S): COMPLAINANT -------------------------- THE SUB INSPECTOR OF POLICE, KENICHIRA POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR V MANU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/09/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN, J ........................................... CRL.A.NO. 1121 OF 2002 ............................................ DATED THIS THE 10TH DAY OF SEPTEMBER, 2009 JUDGMENT The appellant stands convicted for the offences punishable under Section 55(a) of the Abkari Act, on the allegation that at about 2.15 pm, on 8.9.1998, he was apprehended with 235 packets of karnataka made arrack in a plastic bag being carried for sale in controvention of the provisions of the Abkari Act . That provision relates only to import and possession of such materials. The allegation had been that such possession is for sale. The charge against the petitioner could have been under Section 55(i) also. But the court has framed charge only under Section 55(a). 2. PW5, Detecting Officer, Pws 2 and 3, the witnesses of the mahazars and PW6, Investigating Officer and PW1, Police Constable and PW4, witnesses to the scene mahazar were examined. Search and seizure was covered by Ext.P1 mahazar. Ext.P2 is the scene mahazar. Ext.P5 chemical examination report proved the nature of the substance. MO3, a plastic sack, MO2, six empty packets and MO1, 229 packets with substance also CRA 1131/2002 2 formed part of evidence. 3. The Court of Session found the accused guilty of offence punishable under Section 55(a) and sentenced him to undergo rigorous imprisonment for one year and imposed a fine of Rs.1,00,000/- and a default sentence of rigorous imprisonment for six months in that regard. 4. Attacking the findings of Court of Session, the learned counsel for the appellant reiterated the fundamental defence set up before the trial court. It was canvassed that there is material contradiction between the testimony of the witnesses in relation to the alleged apprehension, arrest, search, seizure etc. But a perusal of the materials would show that PW2 and PW3, though were declared hostile, had admitted their signatures in the mahazars and had also spoken about the presence of the Detecting Officer, accused and seizure of the materials. The contradictions attempted to be pointed out in relation to the question as to who drove the jeep etc, were appropriately addressed by the Court of Session and the findings rendered by the learned Sessions Judge holding that there is no material contradiction stands. The findings of the court below, on CRA 1131/2002 3 appreciation of evidence does not warrant interference. The conviction therefore stands. 5. On the question of sentence, the learned counsel for the appellant stated that the accused has to maintain a family consisting of wife and children and that he was only 36 years old at the time of trial in 2001, in relation to the offences allegedly committed in 1998. Having regard to the modus, the materials involved, the nature of the transaction attributed and found against the accused, viz, import of 235 packets of karnataka made arrack, each packet containing 100 ml, the Court of Session has rightly treated the first instance as the commission of a grievous offence. Court of Session further stated that taking a lenient view, sentence of rigorous imprisonment for one year is being imposed. Having regard to the maximum prescription in terms of Section 55, as to the sentence, I do not find any legal infirmity in the sentence imposed by the Court of Session. Taking into consideration the transaction as a whole, I find no ground to reduce the sentence imposed on the accused. Appeal fails and the same is accordingly dismissed. 6. The learned Magistrate shall take necessary steps for CRA 1131/2002 4 execution of the impugned sentence. The appellant shall appear and his sureties shall produce him before the Additional Sessions Judge(Adhoc -Fast Track), Kalpetta on 20.11.2009 to suffer the sentence, with proof of having satisfied the payment of fine, if paid. Needless to say, the learned Magistrate shall take necessary action against the appellant and his sureties under Section 446 Cr.P.C, if he does not appear as directed above. THOTTATHIL B RADHAKRISHNAN, JUDGE lgk/14/9 THOTTATHIL B RADHAKRISHNAN, J CRA 1131/2002 5 CRL.A.1131/2002 JUDGMENT 10TH SEPTEMBER, 2009