IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 CRL.A.No. 2125 of 2003() ------------------------ SC.149/2002 of ADDL. SESSIONS COURT III (ADHOC), FAST TRACK NO.I, THRISSUR .................... APPELLANT(S): ACCUSED --------------------- CHANDRASHEKHARAN, S/O. KOLLIKARE RAMAN, CHENGALLUR, THRISSUR. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT(S): COMPLAINANT & STATE OF KERALA -------------------------------------------- THE STATE OF KERALA, REP. BY THE EXCISE INSPECTOR, IRINJALAKKUDA RANGE, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. BY PUBLIC PROSECUTOR SRI TEK CHAND. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/06/2009, THE COURT ON 10/7/2009 DELIVERED THE FOLLOWING: P.Q. BARKATH ALI, J. -------------------------------------- CRL.APPEAL 2125 OF 2003 -------------------------------------- Dated:July 10 , 2009 JUDGMENT In this appeal the accused in SC No.149/2002 on the file of the Addl. Sessions Court III, (Ad hoc) Fast Track No.1, Thrissur challenges his conviction under sec.58 of the Abkari Act and sentence to undergo rigorous imprisonment for one year and to pay a fine of Rs.1 lakh, in default to undergo rigorous imprisonment for a further period of three months. 2. The case of the prosecution as shaped in evidence before the trial court was that on August 17, 1999 at about 6 p.m. on the junction where the Harijan Colony road joins the Chengalur – Kundukadavu road in Chengallur village, the appellant/accused was found to be in possession of 5 bottles of 750 ml. each coloured illicit liquor and that thereby committed the offence punishable under sec.58 of the Abkari Act. The appellant/accused was apprehended on the spot. The Judicial First Class Magistrate's Court, Irinjalakuda, took cognizance of the case as C.P.No.88/2001 and committed the same to the CRL.APPEAL 2125 OF 2003 2 Sessions Court, Thrissur. Initially the case was made over to the Assistant Sessions Court, Irinjalakuda and thereafter it was withdrawn and made over to the trial court for trial and disposal. 3. When the appellant/accused appeared before the trial court, he pleaded not guilty to the charge under sec.58 of the Abkari Act. Pws.1 to 7 were examined and Exts.P1 to P10 were marked and M.Os.1 and 2 were produced on the side of the prosecution before the lower court. When questioned under sec.313 Cr.P.C. by the lower court, the appellant denied the entire incident. No defence evidence was adduced. 4. The lower court accepted the evidence adduced on the side of the prosecution, found the appellant guilty of the offence punishable under sec.58 of the Abkari Act, convicted and sentenced him as aforesaid. The accused has now come up in appeal. 5. When the case came up for hearing on June 16, 2009, counsel for the appellant was absent. Therefore the appeal was taken up for judgment. 6. The main ground urged in the appeal memo is that as Pws.2 and 3, the independent witnesses, turned hostile and did CRL.APPEAL 2125 OF 2003 3 not support the prosecution, the lower court erred in believing the evidence of Pws.1 and 7 who are the official witnesses. 7. The following points arise for consideration:- i. Whether the finding of the lower court that the prosecution has proved that the appellant/accused was found to be in possession of 5 bottles of illicit arrack as alleged by the prosecution can be sustained? ii. Whether the conviction and sentence of the appellant/accused by the lower court is sustainable? 8. The prosecution, to establish the case against the accused, examined Pws.1 to 7 and produced Exts.P1 to P10 and M.Os.1 and 2 before the trial court. PW.1 is the Preventive Officer of the Excise Range, Irinjalakuda, who accompanied PW.7, another Preventive Officer of the same range who detected the offence. Pws.2 and 3, were the independent witnesses, who have turned hostile and did not support the prosecution. PW.4 is the village officer who prepared the sketch of the scene of incident, Ext.P3. PW.5 is the Excise Inspector who conducted the investigation and prepared the scene mahazar Ext.P4. PW.6 is the Excise Inspector who submitted the charge sheet. Ext.P5 CRL.APPEAL 2125 OF 2003 4 is the report of the chemical examiner. The appellant/accused mainly contended that as the independent witnesses Pws.2 and 3 turned hostile, the lower court has went wrong in believing the evidence of PW.1 and 7, who are the official witnesses. 9. I find no substance in the above contention. It is settled law and is held in Girja Prasad v. State of M.P. {2007 (4) KLT 99 (SC)} that the evidence of official witnesses can be believed if the same is found reliable and trust worthy. I have gone through the evidence of Pws.1 and 7. I find no reason to suspect their credibility. Nothing was brought out during their cross-examination to show that Pws.1 and 7 have any prior enmity towards the accused. Further, no serious discrepancies were pointed out in their cross-examination to discard their evidence. For all these reasons I feel that the lower court is perfectly justified in believing their evidence and coming to the conclusion that the prosecution has succeeded in proving that on August 7, 1999 at 6 p.m. accused was found to be in possession of 5 bottles of 750 ml. of coloured illicit liquor at Chengalur. That being so, the conviction of the appellant under sec.58 of the Abkari Act has to be confirmed. CRL.APPEAL 2125 OF 2003 5 10. As regards the sentence, the lower court imposed a sentence of rigorous imprisonment for one year and to pay a fine of Rs.1 lakh, in default to undergo rigorous imprisonment for a further period of three months. Taking into consideration the fact that the accused/appellant is aged 52, I feel that the substantive sentence can be reduced to the period of remand he has already undergone i.e. from August 17, 1999 to September 17, 1999. The sentence of fine being the statutory minimum is maintained in the light of the principles laid down in Nhaliyan Makkin Raveendran v. State of Kerala {2008(5) SCC 436}. In the result the appeal is dismissed with the above modification regarding sentence. P.Q. BARKATH ALI, JUDGE mt/-