IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 11TH NOVEMBER 2009 / 20TH KARTHIKA 1931 CRL.A.No. 2061 of 2003() ------------------------ SC.147/2002 of ADDITIONAL SESSIONS JUDGE(ADHOC II), THODUPUZHA CP.2/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT - I, IDUKKI .................... APPELLANT(S): ACCUSED -------------- SIVAN, S/O. VELAYUDHAN, MULAKKAKUDIYIL, MARIGIRIKARA, VATHIKUDY VILLAGE. BY ADV. SRI.S.RAJEEV RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ERNAKULAM BY PUBLIC PROSECUTOR SMT.REKHA C. NAIR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.Appeal.No.2061 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of November, 2009 ORDER Challenge in this appeal by the accused is to the judgment of Additional Sessions Judge (Adhoc II), Thodupuzha in Sessions Case No.147/2002 dated December 10, 2003 convicting the accused under Section 8(1) and 8(2) of Abkari Act and sentencing him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1 lakh, in default, to undergo simple imprisonment for two months. 2. The case of the prosecution as shaped in evidence before the trial court was that on September 22, 2001 at about 7.40 pm, he was found to be keeping two bottles of illicit arrack containing 330 ML in his house bearing door No.11/760 of Vathikudi Panchayat and that thereby committed the offence punishable under Section 8(1) and 8(2) of Abkari Act. 3. The accused on appearance before the committal court i.e. Judicial First Class Magistrate Court, Idukki was served with copies of documents relied on by the prosecution. As the offence under Section Crl.Appeal.No.2061/03 Page numbers 8(1) and 8(2) of Abkari Act is exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Thodupuzha from where it was made over to Assistant Sessions Court, Thodupuzha from where it was transferred to the trial court for trial and disposal. 4. The accused on appearance before the trial court pleaded not guilty to a charge under Section 8(1) and 8(2) of Abkari act. PWs 1 to 7 were examined and Exts.P1 to P13 and MO1 were marked on the side of the prosecution before the trial court. When questioned under Section 313 of Cr.P.C, by the trial court, the accused denied having committed any offence. On the side of the accused, Exts.D1 and D2 were marked. 5. The trial court on an appreciation of evidence found the appellant guilty of the offence punishable under Sections 8(1) and 8(2) of Abkari Act , convicted him thereunder and sentenced him as aforesaid. The accused has now come up in revision challenging his conviction and sentence. 6. Heard the counsel for appellant and the Public Prosecutor. Crl.Appeal.No.2061/03 Page numbers 7. The following points arise for consideration : 1) Whether the accused was the owner and in possession of the house bearing door No. 11/760 of Vathikudi Panchayat from where the contraband articles were seized. 2) Whether the conviction of the appellant under Section 8(1) and 8(2) of Abkari Act can be sustained ? 3) Whether the sentence imposed is excessive or unduly harsh? Point Nos. 1 to 3 8. The case of the prosecution to be proved against the accused was that on 22/9/2001 at about 7.40 pm, he was found to be in possession of two bottles of illicit arrack in his house at Vathikudi Panchayat bearing door No.11/760 and that thereby committed the offence punishable under Sections 8(1) and 8(2) of Abkari Act . PWs 1 to 7 were examined and Exts.P1 to P7 were marked on the side of the Crl.Appeal.No.2061/03 Page numbers prosecution. PW6 is the Sub Inspector, Murickassery police station who detected the offence . PW5 is the Police Constable of the said police station who accompanied PW6 at the time of detection, arrest and seizure. PW6 testified in terms of the prosecution case. Ext.P6 is the search memorandum. He would say that on search of the house of the accused, he saw a big shopper containing two bottles kept in the middle room of the house. One bottle contained 180 ML of illicit arrack and another contained 150 ML . He found the same to be illicit arrack by smelling and tasting. His evidence was clearly supported by the evidence of PW5. Ext.P7 is the arrest memo. Ext.P8 is the inspection memo. Ext.P9 is the arrest intimation proved by PW6. He has prepared Ext.P1 mahazar. I have gone through the evidence of PWs 5 and 6. Nothing was brought out during their cross examination to discredit their evidence. 9. Their evidence is sought to be discredited on the ground that PWs 1 to 3 independent witnesses for the search and seizure turned hostile and did not support the prosecution . There is no merit in the above argument. It is settled law that the evidence of official witnesses Crl.Appeal.No.2061/03 Page numbers can be accepted, if otherwise found reliable . On going through the evidence of PWs 5 and 6, I find their evidence reliable. It was not even suggested during their cross examination that they have any enmity towards the accused . Therefore, I am inclined to accept the evidence of PWs 5 and 6 and hold that the prosecution has proved the search and seizure of the contraband articles from the house of the accused. 10. Counsel for the appellant argued that the house from where contraband articles were seized though it belongs to the accused it is in possession of some other person. In an attempt to prove the above aspect, Ext.D1 identity card of the appellant and Ext.D2, ration card of the appellant was produced to show that he is residing in another house. On the side of the prosecution, PW4 , the Secretary in charge of Vathikudi Panchayat was examined and Ext.P5 possession certificate was marked to prove the ownership of the disputed house. Exts.D1 and D2 show that accused is residing in another house, but do not show that he is not in possession of the disputed house. It was not suggested to PW6 during cross examination that who was actually in possession of the said house. Therefore, it has to be presumed that Crl.Appeal.No.2061/03 Page numbers accused was in possession of the said house. Further at the time of search and seizure, he was present in that house. Therefore, the lower court is perfectly justified in coming to the conclusion that the accused was in possession of the said house. 11. Counsel for the appellant argued that PWs 5 and 6 admitted when cross examined that there were 4 or 5 other persons found at the time of search of the said house which probabilise the case of the accused that somebody else is in possession of the said house. But the accused has no case that any one of them were in possession of the said house. Therefore, the case of the accused that somebody else was in possession of the said house cannot be accepted. For all these reasons, I am inclined to confirm the conviction of the accused under Section 8 (1) and 8(2) of the Abkari Act. 12. As regards the sentence, the total quantity of arrack found to be in his possession was only 330 ML. Further the incident occurred in 2001. Taking into consideration these aspects, I feel that the substantive sentence can be reduced to the period of imprisonment already undergone by him i.e. from 22-09-2001 to 28-09-2001. As Crl.Appeal.No.2061/03 Page numbers regards the sentence of fine, it is maintained being the statutory minimum, but the default sentence is reduced to one month. In the result, the appeal is allowed in part. Conviction of the appellant under Section 8(1) and 8(2) of the Abkari Act is confirmed. The sentence is modified to the effect that the substantive sentence is reduced to the period of imprisonment already undergone by him. The sentence of fine is maintained. But the default sentence is reduced to simple imprisonment for one month. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.Appeal.No.2061/03 Page numbers