IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 CRL.A.No. 1394 of 2003(C) ------------------------------------- SC.NO.282/2000 OF ADDL.SESSIONS COURT (ADHOC)-1, KASARAGOD. .................... APPELLANT/ ACCUSED: ----------------------------------- NAGESH, AGED 36 YEARS, S/O.BALANNA NOCLI, BADIYAS HOUSE, KODICHAL, BEYAR. BY ADV. MR.M.SASINDRAN. RESPONDENT/ COMPLAINANT/RESPONDENT: ------------------------------------------------------------------- STATE - REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1394 OF 2003 ------------------------------ Dated this the 7th day of August, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed by the Additional Sessions Judge (Adhoc-I), Kasaragod in S.C.No.282/2000. The accused was charge sheeted for an offence under Section 55(a) of the Abkari Act and was found guilty and convicted there under and sentenced to undergo R.I for three years and to pay a fine of Rs. One lakh and in default to undergo R.I for six 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 materials to hold the accused guilty of the offence under Section 55(a) of the Abkari Act. (2) In case of guilt, whether the sentence awarded is excessive? 3. Points: Heard the learned counsel for the appellant as well as the Prosecutor. The learned counsel for the appellant would contend that the evidence of the official witnesses are not trustworthy especially in the backdrop of the independent witnesses and further that there is delay in presenting the 2 CRL.A.NO.1394/03 sample before the court and sending it for examination and so it has to be held that the accused is not liable to be convicted for the offence. The evidence available is that of PWs 1 and 4, the official witnesses. 4. PW1 is the police constable who had accompanied PW4. He had deposed before the court that they reached the place at 4 p.m and saw the accused standing there with a cardboard box. It was found that it contained 12 bottles of coconut fenny and thereafter sample was taken in two bottles. In the cross examination it is deposed that he does not know whether there is any waiting shed at the place. He had also stated that the sample was taken by the Sub Inspector f Police and he does not remember the colour of the bottle but he would say that the liquid has no colour. He also speaks about the sampling of the bottle. He denied the suggestion that the accused was asked to get down from the bus and a case was registered against him. 5. PW4 is the Sub Inspector of Police who had detected the offence. He had stated about apprehension of the accused and taking of the sample. He had also stated in the cross examination that the accused was not asked to get down 3 CRL.A.NO.1394/03 from the bus and a case was registered. He had also stated that what is stated in the chemical analysis report that sample taken is a clear brownish liquid. But it is surprising to note that no question was put to the person who had detected the crime that what was the colour of the liquid at the time of the seizure. 6. PWs 2 and 3 are two independent witnesses who as usual in abkari cases had turned hostile to the prosecution. Now I will proceed to answer the contention raised by the learned counsel. The liquid was seized from the accused on 22.1.1999 and it had reached the court on 30.1.1999. The Magistrate court by endorsement of the Magistrate had verified and returned it for proper custody to the officer who had produced it. It is also clearly stated in the thondi list that there has been proper labels on the 12 bottles, two sample bottles of 375 ml, one empty bottle and a cardboard box. The incident is of the year 1999 and the witnesses were examined in this case after a period of 4 years in 2003. One may not be able to precisely say or remember what was the exact location and colour etc. It is very pertinent to note that no question has been put to the person who had detected the 4 CRL.A.NO.1394/03 crime and taken the sample. There is no ax to grind for the officials against the accused. The factum that he was carrying 12 bottles of fenny made in Karnataka would show that he was transporting to the State where it is prohibited. It is true that in cases where delay is not properly explained and if it has caused prejudice to the accused, it may have to be viewed in favour of the accused. But it is true that there is a delay of 9 days. It was in the custody of the person who had detected it. He had produced it before the court on 31.1.1999 and everything including seal and label was intact. It is the very same that had been sent for chemical analysis. 7. Therefore, mere delay of 9 days has not caused any prejudice to the accused. I do not suspect any tampering in this case especially in the backdrop of the evidence of PWs 1 and 4. Therefore, I find that the court below was perfectly right in holding the accused guilty under Section 55 (a) of the Abkari Act especially in the backdrop that it was the Karnataka made fenny that was being taken into the State for the purpose of sale. So, Section 55 (a) will be attracted in the case. 8. Now turning to the question of sentence. The quantity 5 CRL.A.NO.1394/03 of liquor involved is 9 litres. The imprisonment is for 3 years and a default sentence of 6 months in failure to pay Rs. One lakh. I feel, the sentence is on the higher side which requires some interference. Interest of justice can be met by reducing the sentence to S.I for 4 months and to pay a fine of Rs. One lakh and in default to undergo S.I for 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 Act is sustained. 2. The sentence is modified and the accused is sentenced to undergo S.I for 4 months and to pay a fine of Rs. One lakh on failure of which to undergo further imprisonment for two months. He is also 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.1394/03