IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 CRL.A.No. 948 of 2003() --------------------------------- SC.215/1998 of ADDL. SESSIONS COURT, THALASSERY. .................... APPELLANT/ACCUSED: --------------------------------- V.P. NARAYANAN, S/O. CHINNAPOTAN, AGED 33 YEARS, CHAVASSERI PARAMBA, CHAVASSERI AMSOM, VALIYAMBRA DESOM, THALASSERY TALUK. BY ADV. MR.P.SURESH MR.C.A.CHACKO RESPONDENT/COMPLAINANT: -------------------------------------------- THE SUB INSPECTOR OF POLICE, MATTANNOOR POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A.No. 948 of 2003 ORDER ON CRL.MA.NO.5981/2003 IN CRA.948/2003 CLOSED 06/08/2009. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs. M.N. KRISHNAN, J. --------------------------- CRL.A.NO.948 OF 2003 ------------------------------ Dated this the 6th day of August, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed by the Additional Sessions Judge (Adhoc-II), Thalassery in S.C.No.215/1998. The accused was charge sheeted for the offence under Section 55(a) of the Abkari Act and was convicted there under and sentenced to undergo R.I for one year and to pay a fine of Rs. One lakh and in default to undergo further R.I for three months. 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 under Section 55(a) of the Abkari Act (2) In case of guilt, is the sentence imposed excessive? 3. Points 1 and 2: Heard the learned counsel for the appellant as well as the Prosecutor. The learned counsel for the appellant would contend that there has been a delay of 10 days in 2 CRL.A.NO.948/03 presenting the sample before the court and further that the independent witnesses have turned hostile and therefore, the accused is entitled to acquittal. On the other hand, the Prosecutor would contend that the delay has not caused any prejudice to the accused and the evidence of the official witnesses are absolutely satisfactory. 4. I have gone through the evidence in this matter as well as the document produced before the court. PW3 is the driver of the police jeep, who had accompanied PW5, the Sub Inspector of Police on the relevant date. He had deposed before the court that the accused was found with a white Can and on interception and examination, it was found to be one litre of illicit arrack. Sample was taken and it was properly sealed. Though he had been cross examined at length, nothing is brought out to discredit his evidence. 5. PW5 is the officer, who had detected the crime. He had deposed before the court that the accused wanted to run away but he was apprehended and examined and it was found that he had a white Can with one litre of illicit arrack. In his 3 CRL.A.NO.948/03 presence, the sample was taken and sealed. The remainder was also sealed and it was produced before the court. He had also stated in the cross examination that the bottle for taking the sample was available in the jeep and even in the Can there is signature of the accused and he identified MO1. He also submitted that the reason for the delay was on account of his other busy official duty. He had reiterated that the articles were in his safe custody. It is true that the independent witnesses had turned hostile. But time and again this Court had held that turning of hostility by the independent witnesses shall not be a ground for acquittal when official witnesses tender evidence and it is meticulously scrutinized and found to be trustworthy and reliable that can form the basis of conviction especially under the provisions of the Abkari Act. Evidence of PWs 1 and 5 inspires confidence and they have done only when they are on official duty. 6. So far as the appellant is concerned, it is true that the material objects had been produced before the court only 10 days after the seizure. It is always advisable that such 4 CRL.A.NO.948/03 delays are avoided but when a Sub Inspector of Police does it, he is doing it along with other official duties and therefore, there may be some delay in producing such articles. He had deposed before the court that after his seizure it was in his custody. The sample and MO1 were produced before the court and the court has satisfied about the correctness of the same and therefore it was received after verification. When it was sent for chemical analysis, the chemical analyst's report would reveal that the seal on the bottle was intact and found tallied with the sample seal provided. It would further indicate that the things were in order. 7. Just because there is delay of 10 days, one shall not jump to the conclusion of tampering of the sample. Here things are intact and therefore, I find that the learned Judge was correct in holding so. So, I do not find any material to take a different view than that of the learned Sessions Judge and I uphold the conviction under Section 55 (a) of the Abkari Act. 8. So far as the sentence is concerned, the accused is 5 CRL.A.NO.948/03 hardly aged 33 years and he had to look after his family. It is the practice among people especially who live below the poverty line to resort to this type of activities in order to met their both ends. Therefore, I am inclined to reduce the simple imprisonment to three months and the default sentence to a period of two months. 9. In the result, the criminal appeal is disposed of as follows: 1. The finding of guilt under Section 55(a) of the Abkari At is sustained. 2. The sentence is modified and the accused is sentenced to undergo S.I for a period of three months and to pay a fine of Rs. One lakh and in default to undergo further S.I for two months. He is 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 6 CRL.A.NO.948/03 M.N. KRISHNAN, J. --------------------------- CRL.A.NO.948 OF 2003 ------------------------------ 6th day of August, 2009 JUDGMENT