IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 CRL.A.No. 1862 of 2003() ------------------------ SC.667/2001 of ADDL. SESSIONS COURT (ADHOC), TRIVANDRUM .................... APPELLANT(S): ACCUSED: ---------------------- K.GOPALAN NAIR, S/O. KOMAPPAN NAIR, CHEMPAKATHUVILA MELEPUTHEN VEEDU, HOUSE NO.12/9, THELI DESOM, THIRUMALA VILLAGE. BY ADV. SRI.K.SATHEESH KUMAR SRI.T.A.UNNIKRISHNAN RESPONDENT(S): COMPLAINANT: --------------------------- STATE OF KERALA, REP. BY THE EXCISE INSPECTOR, THIRUVANANTHAPURAM RANGE THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MOHAMMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.Appeal.No.1862 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of June, 2009 JUDGMENT In this appeal, the accused in Sessions Case No.667/01 of Additional Sessions Judge, Fast Track (Adhoc) No.II, Thiruvananthapuram challenges his conviction under Section 58 of the Abkari Act and sentence to undergo simple imprisonment for one month and to pay a fine of Rs. 1 lakh, in default, to undergo simple imprisonment for three months. 2. The case of the prosecution as shaped in evidence before the lower court is that on February 5, 1998 at about 6 p.m., the appellant/accused was found to be in possession of three bottles of Indian made foreign liquor bearing mark 'for canteen services only' kept in a plastic bag on the northern side of the road in front of the office of the Electricity Assistant Executive Engineer, Thirumala in the Poojappura- Thirumala road and thereby committed an offence punishable under Section 58 of the Abkari Act. The appellant/accused was arrested on the spot. CRA.No.1862/03 2 3. The Judicial First Class Magistrate Court took cognizance of the offence as C.P.No.1000/2000 and committed the case to the Sessions Court, Thiruvananthapuram from where it was made over to the trial court. On entering appearance before the lower court, the appellant/accused pleaded not guilty to a charge under Section 58 of the Abkari Act. PWs 1 to 5 were examined, Exts.P1 to P3 were marked on the side of the prosecution. When questioned under Section 313 Cr.P.C. by the lower court, the appellant/accused denied having committed any offene. On the side of the appellant, Ext.D1 was marked. 4. PW1 is the preventive officer who detected the offence and arrested the accused and seized the contraband articles from the appellant/accused. He has also prepared the mahazer- Ext.P1. PW2 is the another preventive officer who accompanied PW1. PWs 3 and 4 are independent witnesses who have turned hostile and did not support the prosecution. PW 5 is an Excise Guard who was also present along with PWs 1 and 2 at the time of the offence. The case was investigated by PW 5 and the charge was laid by him. The lower court on an CRA.No.1862/03 3 appreciation of evidence found the appellant guilty of the offence punishable under Section 58 of the Abkari Act and sentenced him to undergo simple imprisonment for a period of one month and to pay a fine of Rs. 1 lakh, in default, to undergo simple imprisonment for a further period of three months. The accused has come up in appeal 5. The main question which arises for consideration in this appeal is that whether the prosecution has succeeded in proving that on February 5, 1998 at about 6 p.m., the accused was found to be in possession of 3 bottles of Indian made foreign liquor near the office of the Electricity Assistant Executive Engineer, Thirumala in the Poojappura-Thirumala road ? If so, what is the proper punishment ? 6. The learned counsel appearing for the appellant argued that as PWs 3 and 4, the independent witnesses have turned hostile, the lower court went wrong in believing the evidence of PWs 1 and 2 and convicting the accused on the strength of their evidence as they are Excise officials. I find no merit in the above contention. It is settled law and held in Girija Prasad v. State of M.P. ( 2007(4) KLT 99 SC) that evidence of the officials can be believed if their evidence found to CRA.No.1862/03 4 be credible and free from any infirmity. 7. I have gone through the evidence of PWs 1 and 2. I find no reason to disbelieve their evidence. No serious inconsistencies or contradictions were pointed out in their evidence to render their evidence unreliable. Defence counsel was not able to shake their evidence in cross examination. Further, it was not even suggested in cross examination that they are having any prior acquaintance or enmity towards the appellant. Therefore, I am of the view that the lower court is perfectly justified in believing their evidence and coming to the conclusion that the accused was found to be in possession of 3 bottles of Indian made foreign liquor on 5-2-1998 at about 6 p.m. as alleged by the prosecution. That being so, the conviction of the appellant by the lower court under Section 58 of the Abkari Act has to be confirmed. 8. As regards the sentence, the lower court imposed a sentence of simple imprisonment for a period of one month and to pay a fine of Rs. 1lakh, in default, to undergo simple imprisonment for a further period of three months. At the time of commission of the offence, the CRA.No.1862/03 5 permitted quantity of Indian made foreign liquor that can be carried was 1.5 litres as seen from S.R.O. 127/99 dated 5-2-1999, the notification issued under Section 10 of Abkari Act. Now as per the amendment S.R.O.725/2003 dated 2-8-2003, the quantity has been increased to 3 litres. Further the incident occurred about 10 years back . Taking into consideration all these facts, I feel that the sentence of imprisonment can be reduced to the period of remand already undergone by the appellant i.e. from 5-2-1998 to 10-2-1998. As regards the fine, in the light of the principles laid down in Surendran v. Excise Inspector ( 2004(1) KLT 404) and the fact that the quantity of liquor which the appellant was found to be in possession was only 3 bottles of IMFL ( 2.250 litres), I feel that a sentence of fine of Rs. 3,000/- would meet the ends of justice. In the result, conviction of the appellant by the lower court under Section 58 of the Abkari Act is confirmed and the sentence is modified to the effect that substantive sentence is reduced to the period of remand he has already undergone and the fine amount is reduced to Rs. 3000/- ( rupees three thousand), in default, to undergo simple CRA.No.1862/03 6 imprisonment for one month. The appeal is dismissed with the above modification regarding sentence. One month's time is granted for payment of fine. P.Q.BARKATH ALI JUDGE sv. CRA.No.1862/03 7