IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 5TH JANUARY 2011 / 15TH POUSHA 1932 CRL.A.No. 594 of 2010(D) ------------------------------------- SC.356/2007 of ADDL. DISTRICT & SESSIONS COURT (ADHOC) FAST TRACK-III, PATHANAMTHITTA. CP.103/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ADOOR. .................... APPELLANT(S): ----------------------- THULASI, C.NO.4407, CENTRAL PRISON, THIRUVANANTHAPURAM-12. BY ADV. ADV.BIMAL K. NATH [STATE BRIEF] RESPONDENT(S): -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Crl.A.No. 594 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 5th day of January, 2011 JUDGMENT This jail appeal is filed by accused in S.C. No.356 of 2007 on the file of the Additional District and Sessions Judge (ADHOC), Fast Track Court-III, Pathanamthitta. In this appeal he challenges his conviction under sections 8(1) and (2) of the Abkari Act and sentence to undergo rigorous imprisonment for a period of 1 ½ years and to pay a fine of Rs.1 lakh, in default to undergo simple imprisonment for a further period of six months, rendered by the learned Sessions Judge by judgment dated October 20, 2009. 2. The case of the prosecution, as unfolded in evidence before the trial court, in brief, is thus:- PW1 is the then Preventive Officer attached to the Excise Range Office, Adoor. On November 12, 2005 at about 9 a.m. while he along with other Excise officials were patrolling the area near Government L.P.School, Edathitta, they found the accused coming with a jerry can in his hand and on Crl.A.No.594/2010 2 examination, it was found to contain three litres of illicit arrack. The accused was arrested from the post and the can containing the arrack was seized. Ext.P2 was prepared in the presence of independent witnesses. The accused was brought to the office and the case was registered against him. 3. PW5, the then Excise Inspector, conducted the investigation, questioned the witnesses and laid charge before the committal court, Judicial Magistrate of the First Class, Adoor. When the accused appeared before the committal court, copies of documents relied on by the prosecution were furnished to him. As the offence under sections 8(1) and (2) of the Abkari Act is exclusively triable by a Court of Sessions, the case was committed to the Sessions Court, Kozhikode from where it was made over to the Assistant Sessions Court, Pathanamthitta and later to the lower court for trial and disposal. 4. The accused on appearance before the trial court pleaded not guilty to the charge under section 8(1) and (2) Crl.A.No.594/2010 3 of the Abkari Act. PWs.1 to 6 and Exts.P1 to P8 and MO1 were marked on the side of the prosecution. When questioned by the trial court, the accused denied the entire incident. No defence evidence was adduced. 5. The trial court on an appreciation of evidence found the accused guilty under sections 8(1) and (2) of the Abkari Act, convicted him thereunder and sentenced him as aforesaid. Now the accused has come up in appeal challenging his conviction and sentence. 6. The accused was represented by State brief. Heard learned counsel for the appellant and learned Public Prosecutor. 7. The following points arise for consideration:- 1) Whether the search and seizure of MO1 can containing illicit arrack from the accused as alleged by the prosecution is proved? 2) Whether the conviction of the accused under sections 8(1) and (2) of the Abkari Act can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Crl.A.No.594/2010 4 8. Point No.1:- PWs.1 to 6 were examined on the side of the prosecution. PW1 is the then Preventive Officer, Adoor Excise Range who detected the offence. PW2 is the Thondy Section Clerk of the Committal court who proved the sending of sample for chemical examination. PWs.3 and 4 are independent witnesses who turned hostile. PW5 is the Investigating Officer. PW6 is the Excise Guard who accompanied PW1. PWs.1 and 6 testified in terms of the case of the prosecution before the trial court. I have gone through the evidence of PWs. 1 and 6. No serious discrepancies were brought out during their cross examination to discredit their evidence. They have no enmity towards the accused to foist a false against him. 9. It is contended by the learned counsel for the appellant that PWs.3 and 4, the independent witnesses, have turned hostile and that therefore the evidence of official witnesses PWs.1 and 6 cannot be believed. There is no substance in the above contention. The evidence of official witnesses can be relied on if found reliable and Crl.A.No.594/2010 5 trustworthy, as held by the Supreme Court in Girija Prasad V. State of M.P. (2007(4) KLT 99 (SC). The evidence of PWs.1 and 6 were found to be reliable and trustworthy. It is proved by Ext.P9 certificate of chemical analysis that the seized liquid is illicit arrack. Therefore, in my view, the trial court is perfectly justified in relying on their evidence and coming to the conclusion that the accused was found in possession of three litres of arrack as alleged by the prosecution. That being so, the conviction of the accused under sections 8(1) and (2) of the Abkari Act has to be confirmed and I do so. 10. As regards the sentence, the trial court imposed a sentence of rigorous imprisonment for 1 ½ years and to pay fine of Rs.1 lakh, in default to undergo simple imprisonment for a further period of six months. The accused was aged 58 at the time of the incident i.e., in 2005. No previous conviction is pleaded or proved against him. Therefore, a lenient view is taken and I feel that substantive sentence imposed by the trial court can be reduced to the period of Crl.A.No.594/2010 6 imprisonment already undergone by the accused. The sentence of fine being the statutory minimum has to be maintained. 11. In the result, the appeal is allowed in part. The conviction of the appellant under sections 8(1) and (2) of the Abkari Act is confirmed. The substantive sentence imposed against the accused is reduced to the period of imprisonment already undergone by the accused. The sentence of fine being the statutory minimum is maintained. Send the records to the trial court and intimate the Superintendent of Central Prison, Thiruvananthapuram forthwith. P.Q.BARKATH ALI, JUDGE. mn. Crl.A.No.594/2010 7 P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~= Crl.A.No. 594 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~= JUDGMENT