IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 CRL.A.No. 687 of 2004(C) ------------------------------------ SC.NO.269/2001 OF ADDL. DISTRICT & SESSIONS COURT (FAST TRACK COURT -I, PATHANAMTHITTA) .................... APPELLANT/ ACCUSED: ----------------------------------- SASIDHARAN, S/O. SUKUMARAN, THOPPIL MELETHIL VEEDU, MELOOD MURI, PERINGINAD VILLAGE, ADOOR TALUK. BY ADVS. MR.K.HARILAL, SMT.BINDU SREEKUMAR. RESPONDENT/ COMPLAINANT: --------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. C.M. NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 687 OF 2004 = = = = = = = = = = = = = = = Dated this the 19th day of August, 2009. - J U D G M E N T This appeal is preferred against the conviction and sentence passed by the Addl. District and Sessions Judge, Fast Track Court-I, Pathanamthitta in S.C.269/01. The accused was charge sheeted for the offence u/S. 8 of the Abkari Act and was convicted thereunder and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,00,000/- and in default to undergo simple imprisonment for a period of two years. It is against that decision the present appeal is filed by the accused. 2. The points that arise for determination in the appeal are; (1)Whether the materials are sufficient to hold that the accused has committed the offence u/s 8 of the Abkari Act? (2) In case of guilt, is the sentence imposed excessive? Crl.A. 687 OF 2004 -2- Points: 3. Heard the learned counsel for the appellant as well as the Prosecutor. It is the case of the prosecution that on 27.6.98 at about 11.30 a.m. while the preventive officers and others were on patrol duty they found the accused walking towards them with a plastic bag. He was intercepted and examined and it was found that the plastic bag contained 70 polythene sachets with 150 ml arrack in each of them. One such cover was opened and the finger was dipped and tested and it was found to be illicit arrack. Thereafter in 180 ml bottle sample was taken and sealed in the presence of the accused and the witnesses and later further proceedings continued. PWs.1 and 2 are the official witnesses and they had clearly spoken in line with the case of the prosecution. It is deposed that the accused was found with the plastic bag and on seeing them he wanted to retract but he was prevented and on examination it was found that the plastic bag contained 70 identical polythene sachets with 150 ml capacity each. It is deposed by him the finger was dipped in a packet and it was found to be illicit Crl.A. 687 OF 2004 -3- arrack and sample was taken and sealed. PW2 also had given the very same version. PW3 and 4, the independent witnesses had at least admitted their signature in the seizure mahazar. It has been held by this court and it is referred to by the learned Judge that even if the independent witnesses turned hostile the matter can be considered in the back drop of the evidence tendered by the official witnesses provided on a meticulous scrutiny it is found to be trustworthy and reliable. The court below after elaborately considering these aspects had arrived at a decision that the evidence of PWs.1 and 2 are valid and acceptable and therefore had accepted the same. 4. The case of the defence appears to be that the brother of the accused was dealing with illicit arrack and when it was reported to the Excise officials he has caught hold of them and to wreck vengeance on him the Excise officials foisted a false case against the accused. In support of the case the defence examined DW1 and DW2. The Court on an analysis of the evidence found that the evidence of DW1 and 2 are not acceptable and it appears to be a story developed to Crl.A. 687 OF 2004 -4- defeat the case. The chemical analyst on examination found that the liquid contained 28.34% by volume of ethyl alcohol. It is also stated therein that the sample bottle was properly sealed and the seal was in tact and had tallied with the sample seal provided. So all the procedural formalities had been properly complied with and the evidence of PWs.1 and 2 also establish the fact that the accused was found to be in possession of 70 packets of illicit arrack. Therefore there is nothing to interfere with the conviction passed by the court below. 5. Now turning to the question of sentence. The learned counsel for the appellant would submit before me the accused is an young man and he has got a wife and 1½ year old child to be looked after. He has no means and if he is sent to jail they will become destitutes. It is true that he was caught hold of with 10½ litres of illicit arrack and really it is a social menace. It has also to be remembered that he is not a man with affluent circumstances and he had a family to be looked after. So in such cases it is always desirable to reduce Crl.A. 687 OF 2004 -5- the punishment so as to have a social balance. Therefore I feel justice can be met by reducing the sentence of imprisonment to six months rigorous imprisonment and the default sentence of two months simple imprisonment. In the result the Crl.Appeal is disposed as follows: 1) The finding of guilt u/s 8 of the Abkari Act is sustained. 2) The sentence is modified and the accused is sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.1,00,000/- and in default of which he is directed to undergo a further simple imprisonment for a period of two months. (3) He is also entitled to set off as contemplated under S.428 Cr.P.C. (4) The lower court shall execute the sentence. M.N. KRISHNAN, JUDGE. ul/-