IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 21ST DECEMBER 2010 / 30TH AGRAHAYANA 1932 CRL.A.No. 2112 of 2003() ------------------------ ( S.C. NO. 30/1999 OF ADDL. DISTRICT & SESSIONS COURT( ADHOC -I) KOLLAM) APPELLANT/ACCUSED -------------- NEPOLEAN, S/O GEORGE, RESIDING AT RANI VILASAM KARRIKKUZHI, PERAYAM CHERI, MULAVANA VILLAGE KOLLAM BY ADV. SRI.V.CHITAMBARESH RESPONDENT/STATE/COMPLAINANT --------------- 1. THE STATE OF KEARLA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KEARLA ERNAKULAM 2. THE SUB INSEPCTOR OF POLICE KUNDARA POLICE STATION, KOLLAM BY PUBLIC PROSECUTOR SMT.REKHA C. NAIR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.Appeal No.2112 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of December, 2010 JUDGMENT Challenge in this appeal is to the conviction of the appellant/accused under Section 55 (a) of Abkari Act and sentence to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1 lakh in default to undergo simple imprisonment for one year under Section 55(a) of Abkari Act, rendered by the Sessions Judge ( Adhoc I), Kollam by judgment dated December 25, 2003. 2. The case of the prosecution as unfolded in evidence before the lower court is this : PW3 was the then Constable and PW4 was the then S.I. of Police attached to Kundara police station. On September 13, 1997 at about 9 a.m. they were on petrol duty. On receiving information that somebody was selling illicit liquor in the compound of one Vincent adjacent to the house of the accused, they went there and found the accused in possession of four litres of arrack in a cannas having a capacity of 10 litres. They arrested the accused on the spot and Crl.Appeal No.2112/2003 2 prepared the seizure mahazar Ext.P1. They took sample from the seized arrack and brought the accused and thondi articles to the station and charged case against him under Section 55(a) of Abkari Act. They produced the accused before the committal court. 3. The investigation in this case was conducted by PW4 and he laid the charge before the committal court on May 12, 1998. The accused when appeared before the committal court was furnished with copies of all relevant documents relied on by the prosecution. As the offence was exclusively triable by the court of sessions, the committal court committed the case to the Sessions Court, Kollam from there it was made over to the lower court for trial and disposal. 4. The accused on appearance before the lower court pleaded not guilty to a charge under Section 55(a) of Abkari Act . Pws 1 to 4 were examined and Exts.P1 to P4 and MO 1 were marked on the side of the prosecution. When questioned under Section 313 Cr.P.C., the accused denied the entire transaction. On the side of the accused, DW1 was examined. On an appreciation of evidence, the lower court found that the accused has committed the offenece punishable under Section Crl.Appeal No.2112/2003 3 55(a) of Abkari Act, convicted him thereunder and sentenced him as aforesaid. The accused has now come up in appeal challenging his conviction and sentence. 5. Heard the counsel for the appellant and the public prosecutor. 6. The following points arise for consideration : 1) Whether the conviction of the appellant/accused under Section 55(a) of Abkari Act can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 7. PW3, the Constable and PW4 the detecting officer gave a consistent version regarding the search and seizure of contraband articles from the accused. I have gone through the evidence of PW3 and PW4. No serious discrepancies were brought out during their cross examination to discredit their evidence. Further, they have absolutely no enmity towards the accused to foist a false case against him. 8. Counsel for the appellant/accused argued that there is inordinate delay in producing the seized articles in court which has Crl.Appeal No.2112/2003 4 caused much prejudice to the accused and on that account alone, the accused has to be acquitted. In support of his contention, he cited the decision in Narayani v. Excise Inspector ( 2002(3) KLT 725). There is no substance in the above contention. It is true that MO1 was seized on September 13, 1997. But it was produced before the court only on October 3, 1997 as evidenced by Ext.P3, the copy of the property list which is proved by DW1, the thondi clerk of the committal court. In Ext.P4, the Chemical Analysist has reported that the seal and sample were in tact. It is clear from the above that there was no tampering with the samples taken from the spot. Therefore, it cannot be said that any prejudice was caused to the accused due to the delay in production of the sample to the court. Therefore, I find no merit in the above contention raised by the counsel for the appellant and the same is hereby rejected. 9. It was next argued by the counsel for the appellant that Pws 1 and 2, the independent witnesses have turned hostile and that therefore the evidence of official witnesses Pws 3 and 4 cannot be believed. I am unable to agree. The evidence of official witnesses can Crl.Appeal No.2112/2003 5 be relied on if found reliable and trustworthy as held by the Supreme Court in Girija Prasad v. State of M.P. ( 2007 (4) KLT 99 (SC). In the present case, I have gone through the evidence of Pws 3 and 4. I find no reason to suspect their credibility. I find the same reliable and trustworthy. Therefore, the lower court is perfectly justified in relying on their evidence and coming to the conclusion that accused was found in possession of 4 litres of arrack as alleged by the prosecution. That being so, the conviction of the accused under Section 55(a) has to be confirmed. Point No.2 10. As regards the sentence, the trial court imposed a sentence of rigorous imprisonment for five years and a fine of Rs. 1 lakh, in default to undergo simple imprisonment for one year. The incident is of the year 1997. Therefore, a lenient view is taken and I feel that the substantive sentence can be reduced to the period of remand already undergone by the accused i.e. from 13/09/1997 to 09/10/1997. The sentence of fine being the statutory minimum has to be maintained. In the result, the appeal is allowed in part. The conviction of the Crl.Appeal No.2112/2003 6 appellant under Section 55(a) of Abkari Act is confirmed. The substantive sentence imposed by the lower court is reduced to the period of remand already undergone by the appellant. The sentence of fine imposed by the trial court being the statutory minimum is maintained. Two months time is granted for payment of fine. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.Appeal No.2112/2003 7