IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 CRL.A.No. 1185 of 2002() ------------------------ SC.112/2001 of ADDL.SESSIONS COURT, FAST TRACK (ADHOC)-II, KOTTAYAM .................... APPELLANT: ACCUSED: ---------------------- JOSEPH, S/O. THOMAS, EERAYIL HOUSE, URULIKUNNAM KARA, ELIKKULAM VILLAGE. BY ADV. SMT.K.C.BEENA SRI.S.DILEEP RESPONDENT: COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1185 OF 2002 ------------------------------ Dated this the 11th day of August, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed by the Additional Session Judge, Fast Track Court, (Adhoc-II), Kottayam in S.C.No.112/2001. It is the case of the prosecution that the accused was found to be in possession of 4 litres of arrack and he was attempting to sell it to another person by pouring it into a glass and thereby had committed the offence under Sections 55(a) and (i) of the Abkari Act. The trial court found him guilty under Section 55 (a) of the Abkari Act and convicted him there under and sentenced to undergo three years imprisonment and to pay a fine of Rs. One lakh and in default to undergo S.I for 60 days. It is against that decision, the accused has come up in appeal. 2. The points that arise for determination in the appeal are: (1) Whether materials are sufficient to hold the accused guilty under Section 55(a) of the Abkari Act (2) In case of guilt, is the sentence excessive? 3. Points 1 and 2: Heard the learned counsel for the appellant as well as CRL.A.NO.1185 OF 2002 2 the Prosecutor. The learned counsel for the appellant had elaborately argued the matter and had taken me through the evidence and documents produced in the case. He would submit that materials are lacking and just on account of the refusal on the part of the accused to answer the question of the S.I of Police, he had slapped him on his face and had booked him in a false case. The official witnesses alone had supported the case of the prosecution. 4. PW3 is the constable who had accompanied the Sub Inspector of Police on the relevant day. It is deposed by him that at about 8.30 p.m they reached Paika and they got the information that behind the shop room of one Kuriachan, the accused was selling illicit arrack. When they went there, they found the accused holding a white Can and was pouring liquor in a glass to another person. On seeing them, both of them attempted to escape and the accused was apprehended and the liquid was examined by smell and taste and it was found to be illicit arrack. The Can contained 4 litres of arrack. Thereafter 180 ml of sample was taken and it was properly sealed and labelled and the remainder was also sealed in the very same Can. The bucket and the glass CRL.A.NO.1185 OF 2002 3 available also was taken. The witnesses had identified MO1 as the Can and MOs 2 and 3 are the bucket and the glass and MOs 4 and 5 are the sample bottles that had come back after the chemical analysis. He had been cross examined at length and he would depose that only the accused was apprehended. He also would depose that they were able to do all these things with the help of the headlight of the jeep. He had denied the suggestion that there was no arrack in the Can. 5. PW4 is the S. I of Police who had detected the crime. He had spoken in line with PW3. He had also stated about the way in which they proceeded and how they reached and how the accused was apprehended from behind the shop of Kuriachan. The liquor was seized, sample taken, labelled etc. He also speaks about the light of the jeep for preparing the seizure mahazer etc. Though he had been cross examined at length nothing has been brought out to discredit his evidence. Mere inconsistency regarding direction etc cannot be taken as a serious mistake especially in the backdrop of the fact that these witnesses were examined 4 or 5 years after the date of the alleged search and seizure. The bottles which were CRL.A.NO.1185 OF 2002 4 sent for chemical analysis was examined by the chemical analyst and it contained 26.01% and 25.92 % by volume of ethyl alcohol. It is also seen that the seal on the bottles were intact and found tallied with the sample seal provided. In this case it is also stated that the sample bottles had come back and they had been also marked as MOs 4 and 5. The evidence and seizure mahazer would reveal that those were marked as S1 and S2. So everything is done in a methodical manner and therefore it has to be held that the statutory mandate had been properly complied with. 6. So far as acceptance of the official witnesses’ evidence is concerned, it has to be stated that they are found to be reliable and trustworthy and there is nothing to suspect or disbelieve them. It has been held by the courts now that when on meticulous scrutiny it is found to be acceptable, then the conviction can be made on that basis and just because independent witnesses had turned hostile it need not end in acquittal. How the evidence has to be appreciated had been laid down by a learned Judge of this Court in the decision reported in Sivaraman v. State of Kerala (1981 KLT SN page 9 Case 17). Therefore, I find that materials are sufficient to CRL.A.NO.1185 OF 2002 5 hold the accused guilty under Section 55(a) of the Abkari Act. The evidence of DW1 examined from the side of the accused appears to be quite unconvincing for the reason that one cannot expect in a interior place where the seizure has been done to visit a tea shop at 10. 30 p.m to take a cup of tea. Evidence given by DW1 is not trust worthy. Therefore, I find that the conviction and sentence entered by the court below under Section 55(a) of the Abkari Act is only to be confirmed. 7. So far as the sentence is concerned, I think the court below has been little harsh. The learned counsel would contend that he is a poor man to look after a large family and they will be deprived of the sole earning member if he is sentenced to jail. Therefore prays for leniency. After hearing the persuasive argument of the learned counsel, I am inclined to reduce the sentence of imprisonment to 4 months and default sentence to one month. 8. In the result, the criminal appeal is disposed of as follows: 1.The finding of guilt under Section 55(a) of the Abkari Act is confirmed. 2.The sentence is modified and the accused is sentenced to CRL.A.NO.1185 OF 2002 6 undergo S.I for 4 months and to pay a fine of Rs. One lakh and in default to undergo S.I for a further period of one month. He shall be entitled to set off as contemplated under Section 428 of the Cr.P.C. The lower court shall execute the sentence. M.N. KRISHNAN, JUDGE cl CRL.A.NO.1185 OF 2002 7 M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1185 OF 2002 ------------------------------ 11th day of August, 2009 JUDGMENT