IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 CRL.A.No. 1127 of 2003() ---------------------------------- SC.252/2002 of ADDL. SESSIONS FAST TRACK COURT-II (ADHOC), THRISSUR .................... APPELLANT/ACCUSED: --------------------------------- RAGHUNATHAN, S/O. PAZHANIMALA, AGED 23 YEARS, NELLIKATTIL HOUSE, PATTIMEDU DESOM, PEECHI VILLAGE, THRISSUR TALUK. BY ADV. MR.A.X.VARGHESE RESPONDENT/COMPLAINANT: -------------------------------------------- STATE OF KERALA, REP. BY EXCISE INSPECTOR, THRISSUR RANGE. BY PUBLIC PROSECUTOR MR.C.M. NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A.No. 1127 of 2003 ORDER ON CRL.MA. NO.7038/2003 IN CRL.A.1127/2003 DISMISSED 05/06/2009. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE Rs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1127 OF 2003 = = = = = = = = = = = = = = = Dated this the 5th 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.252/02 of the Addl. Sessions Judge, Fast Track Court-II, Thrissur. The accused was found guilty u/s 8 of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.1,00,000/- in default to undergo rigorous imprisonment for 6 months more. It is against that decision the accused has come up in appeal. The brief facts necessary for the disposal of the appeal would show that the accused was found to be in possession of 750 ml. of illicit arrack. He was found to be in possession of the said arrack on 17.5.2000 while the officials were going on their duty they found him in a suspicious circumstance and therefore stopped him and searched him, seized the liquid and tested and smelt it and found it to be arrack and thereafter took the sample. It is also submitted Crl.A. 1127 OF 2003 -2- that thereafter it was sent for chemical examination and it was found to contain 38.40% by volume of ethyl alcohol. 2. The evidence tendered was that of the Excise guards in the form of PWs.1 and 2. They had deposed before Court how the accused was found and how he was stopped and the liquid was seized. They also identified the material object as MO1. The sampling and sealing is also spoken to by them. They had also spoken about the fact how Ext.P2 mahazar was prepared. The independent witnesses did not support the case of the prosecution. It was argued before the Court below that MO1 was not sent for chemical examination by taking sample out of it. It has been answered that since two similar bottles were found sample was taken from one of the bottles and it was sent. Now it is sufficient has been held by this Court in a later decision. The chemical analysis report clearly revealed the presence of 38.40% of ethyl alcohol in the liquid so seized. The learned counsel for the appellant strongly contends before me that there has been delay in sending the liquid. It is seen that on the very next day the Crl.A. 1127 OF 2003 -3- sample and the material objects had been produced before Court. It is true that there has been some delay in sending the liquid but it has not caused any prejudice to him for the reason that the chemical examination report revealed that the sample and sealing were in tact. So it is very clear from the materials available that the prosecution has succeeded in establishing this case and therefore there is nothing to interfere with the finding of guilt. 3. The next point is regarding the sentence. It is submitted that he has got his mother and sister to be looked after besides his wife and children. The quantity is only 750 ml. of arrack. There is nothing to show that he had been previously involved in any offence. So taking into consideration those aspects I am inclined to reduce the sentence from six months to three months and the default sentence for fine of Rs.1,00,000/- from six months to one month. In the result the Crl.Appeal is disposed as follows. (1) The finding of guilt u/s 8 of the Abkari Act is confirmed. Crl.A. 1127 OF 2003 -4- (2) The sentence is modified and the accused is sentenced to undergo rigorous imprisonment for a period of three months for the offence u/s 8 of the Abkari Act and to pay a fine of Rs.1,00,000/-. In case of default of payment of fine he shall undergo further imprisonment for a period of one month. Set off as mentioned is allowed. M.N. KRISHNAN, JUDGE. ul/-