IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 CRL.A.No. 2083 of 2003() ---------------------------------- SC.127/2002 of SESSIONS COURT, MANJERI CP.6/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TIRUR .................... APPELLANT/ACCUSED. --------------------------------- ANIL KUMAR, S/O.VEERAN, THARAMBARIL HOUSE, IRIMBILIYAM VILLAGE, MANKORI COLONY, MALAPPURAM DISTRICT. BY ADV. MR.K.M.SATHYANATHA MENON RESPONDENT(S): ------------------------- 1. THE EXCISE INSPECTOR, TIRUR RANGE, MALAPPURAM DISTRICT. 2. THE STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-682 031. R1 & R2 BY PUBLIC PROSECUTOR MR.C.M. NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 2083 OF 2003 = = = = = = = = = = = = = = = Dated this the 3rd day of June, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed in S.C.127/02 of the Addl. Sessions Judge, Adhoc-II, Manjeri. The accused was charge sheeted for the offence u/s 58 and 8(1) and 8(2) of the Abkari Act and the Court below found the accused guilty u/s 8(2) as well as 58 of the Abkari Act and sentenced him to undergo imprisonment for a period of three years and to pay a fine of Rs.1,00,000/- in default to undergo simple imprisonment for a period of one year. It is against that decision the accused has come up in appeal. The brief facts necessary for the appeal are as follows. The excise officials stopped the bus Prayag and conducted a search and accused who was sitting on the backside of the bus was found to be in possession of a big shopper and was little frightened on seeing the officials. When the bag was examined it was found that it contained a can and further that the can contained 5 liters of illicit arrack and Crl.A. 2083 OF 2003 -2- therefore he was arrested and thereafter samples were taken, sealed and the accused and the material objects were produced before the Court. PWs.1 to 6 were examined. Exts.P1 to P7 and Mos.1 and 2 were marked. The Court below found the accused guilty and convicted him u/s 58 and 8(2) of the Abkari Act but imposed a sentence u/s 58 of the Abkari Act. It is against that decision the accused has come up in appeal. 2. The point that arises for determination is (1) Whether the accused is guilty of the offence u/s 8(2) and S.58 of the Abkari Act, (2) Is there anything to interfere with the decision rendered by the Court below. 3. Heard the learned counsel for the appellant as well as the Public Prosecutor. Learned counsel for the appellant strongly contends before me that the Court below had not analysed the materials properly and had looked into only the interested evidence and further there had been procedural irregularity in the sampling and sealing and further that the guilt of the accused is also not proved. On the other hand the prosecution would say that the evidence available is sufficient and there are materials to find the accused guilty u/s 8(2) of Crl.A. 2083 OF 2003 -3- the Abkari Act. 4. It is the case of the prosecution that the illicit arrack was seized from the accused while he was travelling as a passenger in a bus called Prayag PW1 is the Circle of Inspector of Excise at the relevant time. He had deposed that while on patrol duty they had stopped the bus Prayag and had conducted a search in the bus and they were able to find the accused sitting with a big shopper which contained a black can of 5 liters of illicit arrack. He had also spoken about the sampling and sealing of the articles. He had been cross examined but nothing is brought out to discard his evidence. PW2 is another excise guard who was accompanying PW1 and he had also spoken about the accused, the plastic can, seizure of 5 liters of arrack, sampling as well as sealing. There also on cross-examination nothing is brought out to discredit his evidence. 5. Pw3 is the conductor of the bus. He has not totally supported the prosecution but has supported to the extend that the accused was a passenger in the bus and he had signed the mahazar. PW4 and PW5 are the other officials who had conducted the investigation and prepared the forwarding Crl.A. 2083 OF 2003 -4- note and received the chemical examiner's report. It is brought out in the evidence of PW5 that items 3 and 4 in the property list is not sealed. I had perused the property list and item Nos.4 and 5 in the property list are only big shopper as well as the plastic bag which does not require any sealing. Item No.1 is the balance arrack after sampling and item No.2 is the sample liquid which has been sealed and taken possession of. PW6 has completed the investigation and laid a charge. So the evidence in this case would be that of PW1 and PW2 and to some extend PW3 would prove the factum that the accused had travelled in the bus Prayag and the illicit arrack was seized from him which on chemical analysis reveal that it contained the percentage of liquor and the evidence makes it clear that it was arrack. 6. The argument of the learned counsel that no independent witnesses were cited and examined and that the conductor of the bus has not fully supported the prosecution cannot defeat the prosecution if the evidence of PWs.1 and 5 are acceptable. PW1 and PW5 are of course the officials who are interested in the prosecution. That is why a caution is given by the Courts to the effect that just because a witness is Crl.A. 2083 OF 2003 -5- interested his evidence need not has to be brushed aside. The Courts are bound to meticulously scrutinize the evidence and find out whether such evidence is intrinsically reliable and inherently probable. In the ordinary course of their duty they have searched the bus. It was only in that process they found the accused in possession of the illicit arrack and proceeded against him. I find their evidence is sufficient to hold that the accused has committed the offence coupled with the report of the chemical examination. So I find that the accused has committed the offence u/s 8(2) of the Abkari Act. But the learned prosecutor has pointed out that since the position of arrest is specifically dealt with u/s 8 and the punishment is under S.8(2) it is better that the sentence is granted u/s 8(2) of the Act. Regarding S.58 it is of a general nature. It can be seen that the punishment prescribed under both the sections are normally imprisonment upto 10 years and a fine of Rs.1,00,000/-. So I find the accused guilty under both sections but I modify the conviction and sentence under S.8(2) of the Act. So far as the sentence is concerned leniency can be shown considering the age of the person and back ground, I am inclined to reduce the imprisonment to a period of 1 year Crl.A. 2083 OF 2003 -6- and also reduce the imprisonment for default of payment of fine by two months. In the result the appeal is disposed of as follows. 7. The accused is found guilty u/s 8(2) and S.58 of the Abkari Act and he is convicted and sentenced under both the Sections but the punishment is granted under 8(2) of the Abkari Act. He is sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default to undergo imprisonment for a period of 2 months more. If he was in custody for any period he is entitled to set off u/s 428 Cr.P.C. If he had deposited portion of the fine amount the imprisonment for default sentence be reduced to one month. The Crl.Appeal is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-