IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 24TH AUGUST 2011 / 2ND BHADRA 1933 CRL.A.No. 1969 of 2005() ---------------------------------- SC.860/2001 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-II, KOLLAM CP.49/2000 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOLLAM .................... APPELLANT(S): ACCUSED IN SC. ------------------------------------------------ CHANDRA BABU @ THAPPAN, S/O.KANNAN, AGED 46, KADAVILA CHARUVIL VEEDU, THEKKE MURI, EAST KALLADA VILLAGE. BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.HARISH R. MENON SRI.R.SURAJ KUMAR RESPONDENT(S): COMPLAINANT ----------------------------------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss N.K.BALAKRISHNAN, J. -------------------------------- Crl.A.No.1969 of 2005 ------------------------------- Dated this the 24th day of August 2011 J U D G M E N T The accused was convicted by Addl. Sessions Judge (Adhoc) II, Kollam for offence punishable under Sec.8(1) r/w Sec.8(2) of Abkari Act and was sentenced to undergo R.I. for one year and to pay Rs.1 lakh as fine and in default to undergo R.I. for 9 months. This appeal is directed against that conviction and sentence. 2. The case of the prosecution is that on 30.1.2000, PW5, the Sub Inspector of Police and his subordinates were on patrol duty. They were proceeding in their jeep. While so, PW5 received a reliable information that the accused was selling liquor in a compound of Lelithambika in Kochuplammoodu. The police jeep was stopped a few meters away from that compound of Lelithambika. While they were walking towards that compound they saw the accused in that compound carrying in his hand a black plastic can and glass Crl.A.No.1969 of 2005 -: 2 :- in his other hand. The accused was found jittering. Though he tried to escape from the scene, he was intercepted and questioned by PW5. On examination they realised that the can contained 21/2 liters of arrack. 200ml each was taken as sample. That sample bottle was packed, sealed and labelled in the presence of the accused and witnesses. The plastic can containing the balance liquor was also packed, sealed and labelled in the presence of witnesses then and there. Ext.P1 mahazar was prepared for the seizure of the articles. The accused and the contraband articles were taken to the police station. F.I.R. was registered. The investigation was thereafter conducted by PW6, the Assistant Sub Inspector of Police. The accused and contraband articles were produced before the learned Magistrate immediately on the next day. 3. PWs.1 to 6 were examined and Exts.P1 to P4 were marked. MOs.1 to 3 were also identified and marked. MO1 is the 5 liter plastic can containing the balance liquor. MO2 is one of the sample bottles which was retained in the court. It was packed, sealed and labelled. MO3 is the glass which was Crl.A.No.1969 of 2005 -: 3 :- in possession of the accused which according to the prosecution was used by the accused for selling liquor. 4. PWs.1 and 2 the Police Constables who accompanied PW5, the Sub Inspector who detected the case testified in tune with the evidence given by PW5, the Sub Inspector. Their evidence was in tune with the averments and facts narrated in Ext.P1 seizure mahazar. 5. The learned counsel for the accused vehemently argued that there are inconsistencies in the evidence given by PWs.1, 2 and 5 with regard to the arrest of the accused and seizure of the articles mentioned above. The learned counsel would further submit that PW3, an independent witness did not support the prosecution and so there is no legal evidence to prove the complicity of the accused. The learned counsel has drawn attention of the court to certain inconsistencies in the evidence given by PWs.1, 2 and 5 with regard to the place where the accused was actually seen. There is actually no serious inconsistency or infirmity in the evidence given by those official witnesses. They were not reading out the Crl.A.No.1969 of 2005 -: 4 :- mahazar to say that the evidence should be free from such inconsistencies. When witnesses depose about the incident which took place several months prior to their examination in court there would occur some inconsistencies especially because such officials take part in the detection of so many such cases. The credibility of the witnesses does not depend upon his erudition or memory power. 6. Ext.P1, the contemporaneous record gives a graphic account of what transpired namely; the arrest of the accused, seizure of the contraband articles and also regarding the sampling. It is also pertinent to note that the learned Sessions Judge verified MO2, the 2nd sample which was in the court to ensure whether it was properly packed, sealed and labelled to have an assurance that no tampering was possible. The learned Sessions Judge found no tampering or even the possibility of tampering. Similarly, MO1, the plastic can containing the balance liquor was also seen in a properly packed and sealed condition. It is also worthwhile to note that the accused and contraband articles were produced Crl.A.No.1969 of 2005 -: 5 :- before the learned Magistrate on the next day itself at his residence. Hence, sample bottles were retained by the Magistrate with him (as the production of the accused and articles were on Sunday) only to ensure that no tampering is done. That also would ensure that the sample bottles which were produced before the Magistrate immediately on the next day of the detection were in properly packed and sealed condition. The independent witnesses turned hostile. But their evidence would show that they had signed Ext.P1 seizure mahazar which was prepared at the time and place noted therein. That also would lend assurance to the case of the prosecution. On a careful scrutiny of the evidence, the learned Sessions Judge found that the evidence given by PWs.1, 2 and 5 was sufficient to inspire confidence in the mind of the court regarding truthfulness of the case projected by the prosecution. I find no reason to differ from the view taken by the learned Sessions Judge. Since the accused was found in possession of about 21/2 liters of arrack as was certified by Ext.P4 report, I find that the conviction of the Crl.A.No.1969 of 2005 -: 6 :- appellant for the offence under Sec.8(1) r/w Sec.8(2) is only to be confirmed. The accused was sentenced to undergo R.I. for one year. The learned counsel for the appellant submits that leniency may be shown in the matter of sentence. In the result, this Crl.A. is disposed of as stated below :- The conviction is confirmed and the sentence is modified. The appellant/accused will undergo R.I. for 8 months and to pay Rs.1 lakh as fine as ordered by the court below and in default he will undergo R.I. for 8 months. N.K.BALAKRISHNAN, JUDGE. Jvt