IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN WEDNESDAY, THE 14TH DAY OF DECEMBER 2011/23RD AGRAHAYANA 1933 CRA.No. 1849 of 2003 ( ) ==================== ( AGAINST THE JUDGEMENT DT. 18.10.2003 IN SC.519/2001 of ADDL.SESSIONS JUDGE FAST TRACK (ADHOC-1 )ALAPPUZHA) APPELLANT/ACCUSED = ================== NATARAJAN, S/O. NARAYANAN, JAYARAJA BHAVANAM, PALLICKAL, NADIVILE MURI, BHARANIKAV VILLAGE. BY ADVS.SRI.SURIN GEORGE IPE SRI.P.RAVINDRA BABU RESPONDENT/COMPLAINANT ========================== STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM . BY PUBLIC PROSECUTOR SMT.S.HYMA THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14-12-2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jm P.S.GOPINATHAN, J ---------------------------- Crl.A.NO. 1849 OF 2003 -------------------------- Dated this the 14th day of December, 2011. J U D G M E N T The Additional Sessions Judge, Adhoc - I Alappuzha in S.C.No.519/2001,convicted the appellant for offence punishable under Section 8 of the Abkari Act and sentenced to rigorous imprisonment for one year and a fine of Rs.1,00,000/- with default sentence of rigorous imprisonment for 6 months. Assailing the above conviction and sentence, this appeal is preferred. 2. The prosecution case is that PW1, the Excise Inspector, Mavelikkara Range, on 21-07-1998 got an information that the appellant was keeping arrack in his house by name Jayaraj Bhavan bearing door No.1/734 of Bharanikav Panchayat. PW1 immediately prepared Ext.P1 search memo and proceeded to the house of the appellant along with PW2, the Preventive Officer and party. The house was searched at 5.30 PM. From the south-eastern corner of the room on the western side of the house, a bottle with 1.5 litres of arrack was searched out and seized. Exts.P2 and P3 are the seizure mahazar and search list. The appellant was arrested. In 3 sample bottles, 150 ml Crl.A.NO. 1849 OF 2003 2 each was taken for analysis. The sample bottles and the bottle with remaining quantity of arrack were seized. The samples were forwarded for analysis. By Ext.P5, the Chemical Examiner reported that the sample contained 21.35 % by volume of Ethyl Alcohol. PW5, the Excise Inspector, who conducted investigation, filed a charge sheet before the Judicial Magistrate of the First Class, Kayamkulam. The learned Magistrate, on finding that the offence alleged is exclusively triable by a Court of Session, committed the case to the Court of Session, Alappuzha. From there, it was made over to the Additional Sessions Judge. 3. Responding to the process issued, the appellant appeared before the Additional Sessions Judge. When the charge was framed and read over, the appellant pleaded not guilty. Therefore, he was sent for trial. On the side of the prosecution, PWs1 to 6 were examined. Exts.P1 to P6 and MO1 were marked. The appellant took a defence of total denial. Though, he was called up on to enter his defence, no evidence was let in. The learned Additional Sessions Judge, on appraisal of the Crl.A.NO. 1849 OF 2003 3 evidence arrived at a conclusion of guilt, consequent to which the appellant was convicted and sentenced as above. 4. I have heard Adv.Sri.Surin George Ipe, the learned counsel appearing for the appellant and Smt.S.Hyma, the learned Govt. Pleader. Perused the judgment impugned and the evidence on record. 5. PW1, would depose that while he moving on patrol duty along with PW2, he got information that the appellant had been keeping arrack at his house by name Jayaraj Bhavan bearing door No.1/734 of Bharanikav Panchayat. Therefore, after preparing Ext.P1 search memo, he proceeded to the house of the appellant and searched the house in the presence of PWs3 and 4. On search, a bottle with 1.5 litres of arrack, which was marked as MO1 was seized from the south eastern corner of the room on the western side of the house. Ext.P2, seizure mahazar and Ext.P3 search list were also proved by PW1. The evidence of PW1 is corroborated by the evidence of PW2. PWs3 and 4, who are independent witnesses though admitted the signature in Exts.P2 and P3, denied of witnessing the arrest and seizure. PW5 Crl.A.NO. 1849 OF 2003 4 would depose about the process of investigation, forwarding of the sample for analysis and receipt of Ext.P5 chemical examination report. PW6, the Secretary of the Grama Panchayat would prove Ext.P6 certificate wherein it is certified that the house with door No.1/734 of Bharanikav Panchayat belonged to the appellant. 6. Since, PWs3 and 4 did not support the arrest and seizure, the question that arises for consideration is whether PWs1 and 2 are believable or not. I had a critical scrutiny of their evidence. The learned counsel for the appellant could not bring out any material to reject the evidence of PWs1 and 2. There is nothing on record to show that they had got any axe to grind against the appellant to implicate the appellant with a grave offence of this nature. Their evidence is credible and I fixed no reason to disbelieve them. 7. The ownership of the house proved by the testimony of PW6 supported by Ext.P6 is not disputed. The appellant has no case that MO1 bottle with the contraband liquid was kept in his house by any other member of the house. Therefore, with the aid of Section 64 Crl.A.NO. 1849 OF 2003 5 of the Abkari Act, the learned Additional Sessions Judge had come to a conclusion that it was the appellant who had kept the contraband in his house. By Ext.P5, it was certified that the sample contained 21.35 % by volume of Ethyl Alcohol. Appellant has no case that the liquid contained in MO1 is anything other than arrack. In the above circumstance, in the absence of any material to come to a conclusion that the prosecution is any way vitiated, I concur with the learned Additional Sessions Judge and find that the conviction is based on cogent evidence. Conviction requires no interference. 8. Regarding the sentence, having taken note of the quantity involved and that the appellant was a coolie aged 46 years and there is no bad antecedent, I find that the appellant is entitled to a little leniency and that a substantive sentence of rigorous imprisonment for 6 months with the minimum fine imposed by the trial court would meet the ends of justice. Crl.A.NO. 1849 OF 2003 6 In the result, this appeal is allowed in part. While confirming the conviction, the substantive sentence is reduced to rigorous imprisonment for six months. Minimum fine imposed by the trial court is sustained with the default sentence. The trial court shall see the execution of sentence and report compliance. P.S.GOPINATHAN, amk JUDGE.