IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 27TH AUGUST 2009 / 5TH BHADRA 1931 CRL.A.No. 540 of 2003() ----------------------- SC.236/2000 of ADDITIONAL AND SESSIONS JUDGE, MANJERI .................... APPELLANT/ACCUSED --------------------- VADAKKUMPAT PARANTHANKUTTY S/O. KARAPPAN, NARANGATHPAURAYIL, PALLIKKAL AMSOM DESOM, THIRURANGADI TALUK. BY ADV. SRI.P.S.SREEDHARAN PILLAI RESPONDENTS: COMPLAINANTS --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE EXCISE INSPECTOR, MALAPPURAM. BY P.P.SMT. M.K. PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. ........................................... CRL.A.NO.540 OF 2003 ............................................. Dated this the 27th day of August, 2009 J U D G M E N T This is an appeal preferred against the conviction and sentence passed by the Additional Sessions Judge, Fast Track Court No.II, Manjeri in S.C.No.236/2000. The accused was charge sheeted for the offences under Sections 8(2) and 55(g) of the Abkari Act and was sentenced to undergo R.I for 5 years each and to pay a fine of Rs. one lakh each and in default to undergo imprisonment for one year each. 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 there are sufficient materials to hold the accused guilty of the offences alleged under the Abkari Act and (2) in case of guilt, what is the proper sentence. 3. Heard the learned counsel for the appellant as well as the Prosecutor. It is the case of the prosecution that on 26.7.1997 at about 4 p.m the accused was found in possession of 5 litres of illicit arrack and 25 litres of wash in his house bearing No.II/689 of Pallikkal Panchayat. It is deposed that on getting information regarding the illicit : 2 : CRL.A.NO.540 OF 2003 distillation of arrack and sale, PW1 prepared a search memo and proceeded to the house of the accused and on reaching there, he found the accused holding two Cans in his hands and on seeing the police party he had put down the Cans. The said Cans were examined by taste and smell and it was found to be illicit arrack. Thereafter he was requested to open the house and on search of the southern room of the house there was a Can having the capacity of 50 litres in which 25 litres of wash was also found. Thereafter 180 ml of sample of arrack was taken from both the Cans and 500 ml of wash was taken from the container and the accused was arrested and proceeded further. 4. PW1 would further depose that he had seen the search memo - Ext.P3 and the arrest memo- Ext. P2. The ration card was verified to find out the ownership of the house. He had spoken about other particulars. In the cross examination he had deposed that they had been there for one hour and 15 minutes in the house. He had repeatedly stated before the court that the search memo was prepared : 3 : CRL.A.NO.540 OF 2003 on 26.7.1997 before proceeding to the spot and it was entrusted to a guard. He also speaks about the independent witnesses who were present etc. 5. PW2 is the Preventive Officer who had accompanied PW1. He had also deposed that as per the instructions of PW1, a search memo was prepared and thereafter they proceeded to the spot and they found the accused holding two plastic Cans which were found to be illicit arrack. He also speaks about the seizure of the wash from the southern room of the accused's house. 6. PW3 is the Inspector of the Special Squad and it is he who had registered the case. He deposes that the accused was produced before the court on the next day. PW4 and PW5 are the two independent witnesses to the seizure mahazer. PW4 had totally turned hostile to the prosecution whereas PW5 would admit in the chief examination that he had signed Ext.P1 mahazer from the residence of the accused on 26.7.1997 and further that he had also affixed his signature in Exts. P2 and P5. In the cross examination he would depose that he had signed : 4 : CRL.A.NO.540 OF 2003 Exts.P1, P2 and P5 from the office of the excise and he also changes his version and says that he had only signed in two blank white papers. According to him, he along with PW4 had gone to see the accused in the excise office. 7. The learned counsel for the appellant would strongly contend before me that there is irregularity and illegality since search memo has not been prepared before proceeding to the place. But the definite case of the prosecution is that it has been prepared on 26.7.1997 itself and had been sent to the court. It can be seen from the materials available here that the accused was produced before the Magistrate on 27.7.1997 and it bears the Magistrate's signature whereas in the seal affixed the date shown was 31.7.1997. So, it does not mean that the accused was produced only on 31.7.1997 before the court. 8. So merely on the basis of the seal, one cannot jump to a conclusion that it has been received only on that day especially in the backdrop of Ext.P4 which shows it otherwise. Even otherwise it has to be stated as held in Dominic v. State of Kerala (1989 (1) KLT 601) that : 5 : CRL.A.NO.540 OF 2003 violation of the provision is indeed a serious matter, and that calls for serious notice. But irregularity in search and seizure, by themselves will not make the evidence inadmissible. 9. Here, PWs 1 and 2 had spoken about the preparation of the search memo before proceeding to the house of the accused and just because of the seal affixed, one cannot jump to the conclusion that it has reached the court only on 31.7.1997. It is the statutory mandate that it should be prepared before the search is begun. The evidence of PWs 1 and 2 does not suffer from any infirmity in that regard. However, it has to be stated that the evidence of PWs 4 and 5 helped the accused to some extent. They say that they had signed only in a blank paper but it can be seen that they have signed in the search list which is a printed form. 10. The materials available would show that the officials had gone to the spot. They had apprehended the accused with the plastic Cans which contained illicit arrack. When his house was opened, a 50 litres capacity Can was : 6 : CRL.A.NO.540 OF 2003 there with 25 litres of wash. The panchayat had issued a certificate with respect to the ownership of the house. It shows that it is his house. So, the prosecution has succeeded in proving the same. But I feel that there need not be any conviction under Section 55(g) as well as Section 8(2) of the Abkari Act. Section 8 (1) covers manufacture, sale, possession etc and therefore one has to be convicted under Section 8(2). Further conviction under Section 55(g) is not necessary. Therefore, the accused has to be found guilty only under Section 8(2) of the Abkari Act and convicted there under. 11. Now turning to the question of sentence. The court below has convicted him to undergo S.I for 5 years and to pay a fine of Rs. One lakh and in default to undergo further imprisonment for a period of one years. I feel, it is really on the higher side. Taking into consideration the submissions made and the fact that he has a large family to be looked after and that he has got three small children depending on him, I am inclined to reduce the sentence from 5 years to 5 months and the default sentence from : 7 : CRL.A.NO.540 OF 2003 one year to two months. 12. In the result, the criminal appeal is disposed of as follows: 1. The conviction under Section 8(2) of the Abkari Act is sustained and it is found that no conviction is called for under Section 55(g) in view of the fact that Section 8 (2) covers Section 55(g) as well. 2. The sentence is modified and he is sentenced to undergo S.I for five months and to pay a fine of Rs. One lakh and in default to undergo further S.I for two months. 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 : 8 : CRL.A.NO.540 OF 2003 M.N.KRISHNAN, J. ........................................ CRL.A.NO.540 OF 2003 ........................................ 27th day of August, 2009 J U D G M E N T