IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 CRL.A.No. 121 of 2003(A) ------------------------------------ [SC.NO.487/1999 OF ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD] .................... APPELLANT/ACCUSED: ---------------------------------- A.KARTHYAYANI, AGED 49 YEARS, W/O. GANGADHARAN, ADUKKATHIL, PERIYA VILLAGE, KASARAGOD. BY ADV. MR.M.SASINDRAN. RESPONDENT/RESPONDENT: ------------------------------------------- STATE OF KERALA - REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A. NO.121/2003-A: ORDER ON CRL.M.P. NO. 664/2003 IN CRL.A. NO. 121/2003-A DISMISSED 10/11/2009. SD/- P.Q.BARKATH ALI, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.Appeal.No.121 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of November, 2009 JUDGMENT The appellant is the accused in S.C.No. 487/1999 of Additional Sessions Court (Adhoc I), Kasargod. She was convicted under Section 55(a) and 55(g) of Abkari Act and was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1,00,000/-, in default, to undergo rigorous imprisonment for six months under each count. The substantive sentences were ordered to run concurrently. The accused has now come up in appeal challenging her conviction and sentence. 2. The case of the prosecution as shaped in evidence before the trial court was that on 1/10/1997 at about 6.30 A.M. , the accused was found distilling 1 litre of illicit arrack using 10 litres of wash in the thatched portion of her house bearing door No.VII/386 in Pullur-Periya panchayat of Periya village and that thereby committed the offences punishable under Section 55(a) and 55(g) of Abkari Act. 3. When the accused appeared before the committal court i.e. Crl.Appeal No.121/2003 Page numbers Judicial First Class Magistrate Court II, Kasargod, copies of the documents relied on by the prosecution were furnished. As the offence under Section 55(a) and 55(g) are exclusively triable by the court of Sessions, the case was committed to the Sessions Court, Kasargod from where it was made over to the Assistant Sessions Court, Hosdurg and later made over to the trial court for trial and disposal. 4. On appearance before the trial court, the accused pleaded not guilty to a charge under Sections 55(a) and 55(g) of Abkari Act. PWs 1 to 5 were examined and Exts.P1 to P6 and MOs 1 to 5 were marked on the side of the prosecution. When questioned under Section 313 of Cr.P.C. by the trial court, the accused denied having committed any offence. On the side of the accused, Exts. D1 to D3 were marked. 5. The trial court on an appreciation of evidence found the appellant guilty of the offences punishable under Sections 55(a) and 55 (g) of Abkari Act, convicted her thereunder and sentenced her as aforesaid. The accused has challenged her conviction and sentence in this appeal. 6. Heard the counsel for the petitioner and the Public Crl.Appeal No.121/2003 Page numbers Prosecutor. 7. The following points arise for consideration : 1) Whether the accused was found distilling 1 litre of illicit arrack using 10 litres of wash in the thatched portion of her house as alleged by the prosecution ? 2) Whether the conviction of the appellant under Sections 55(a) and 55(g) of the Abkari Act can be sustained ? 3) Whether the sentence imposed is excessive or unduly harsh ? Point Nos. 1 and 2 8. PWs 1 to 5 were examined and Exts.P1 to P6 and Mos 1 to 5 were marked on the side of the prosecution before the lower court. PW1 is the Police Constable of Bekal Police Station. PW4 is the S.I. of Police, Bekal Police Station who detected the offence. PW1 was along with PW4 at the time of detection of the offence. They testified that on 1/10/1997 at about 6.30 A.M. when they reached near the house of the Crl.Appeal No.121/2003 Page numbers accused, they found the accused in the thatched portion of the house distilling wash in a vessel and that on inspection they found 1 litre of arrack and 10 litres of wash and Mos 1 to 3, the vessels. PWs 1 and 4 gave consistent version regarding the search and seizure of the articles. PWs 2 and 3 are attestors to the scene mahazar . They also supported PWs 1 and 4. I have gone through their evidence. Nothing was brought out during their cross examination to discredit their evidence. PW5 is the investigating officer. 9. On the side of the accused, Exts.D1 to D3 were produced. Ext.D1 is the certified copy of FIR in Crime No.316/1997, Ext.D2 is the certified copy of the seizure mahazar and Ext.D3 is the certified copy of the memo of evidence in the said case showing that a case was also charged against one T.Kottan on the same day at about 5.30 A.M. and the FIR was registered on 7.30 A.M. exactly on the same time when FIR in this case was registered. 10. Counsel for the revision petitioner argued that a person cannot register two FIRs at the same time and that the above aspect casts serious doubt regarding the truth of the version of PWs 1 to 4. I Crl.Appeal No.121/2003 Page numbers am unable to agree. PWs 1 to 4 have gave a consistent version regarding the search and seizure. The lower court has chosen to believe their evidence for convincing and cogent reasons. Therefore, on the above ground alone,I am not inclined to discard the evidence of PWs 1 to 4. No other point was argued before me. 11. For all these reasons, accepting the evidence of PWs 1 to 5, I am inclined to hold that prosecution has succeeded in proving that accused was found distilling 1 litre of arrack using 10 litres of wash in the thatched portion of the house as alleged by the prosecution. That being so, conviction of the appellant under Section 55(a) and 55(g) of Abkari Act has to be confirmed. Point No.3 12. As regards the sentence, taking into consideration the fact that the accused is a lady and the incident occurred in1997, I feel that the substantive sentence imposed under Section 55(g) of Abkari Act can be reduced to imprisonment till the rising of court. The sentence of fine being the statutory minimum has to be maintained. No separate sentence need be awarded under Section 55(a) of Abkari Act. Crl.Appeal No.121/2003 Page numbers In the result, Appeal is allowed in part. Conviction of the appellant under Section 55(a) and 55(g) of Abkari Act is confirmed. She is sentenced under Section 55(g) of Abkari Act alone. No separate sentence is awarded under Section 55(a ) of Abkari Act. The substantive sentence imposed under Section 55(g) of Abkari Act is reduced to imprisonment till the rising of court . Sentence of fine being the statutory minimum is maintained. The appellant shall surrender before the trial court on or before 15/12/2009 to receive the sentence. Three month's time is granted for payment of fine. Her bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.Appeal No.121/2003 Page numbers