IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 CRL.A.No. 799 of 2003() -------------------------------- SC.421/2000 of ADDL. SESSIONS COURT (ADHOC-II), KASARAGOD. ........................................................................ APPELLANT(S): ACCUSED ------------------------------------- PADMANABHA, AGED 43 YEARS, S/O. JANAGAPPA POOJARI, ARIYALA JODKAL, MEENJA VILLAGE. BY ADV. SMT.T.D.RAJALAKSHMI RESPONDENT(S): COMPLAINANT ------------------------------------------------ 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA 2. S.H.O. MANJESHWAR POLICE STATION, MANJESHWAR, KASARAGOD. BY ADV.SMT.M.K.PUSHPALATHA, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.799 OF 2003 -------------------------- Dated this the 9th day of July, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the conviction and sentence passed in S.C.421/00 of the Addl. Sessions Judge, Ad hoc-II, Kasaragod. The accused was charge sheeted u/s.55(a) of Abkari Act and convicted thereunder and sentenced to undergo rigorous imprisonment for a period of 6 months, together with a fine of Rs.1 lakh and in default to undergo rigorous imprisonment of 2 months. It is against that decision the accused has come up in appeal. The points that arise for determination are , 1. Whether the materials available are sufficient to sustain a conviction u/s.55(a) of Abkari Act ? 2. In case of guilt, whether the quantum of punishment awarded is excessive ? 2. Points 1 and 2:- Heard the learned counsel for the appellant as well as the prosecutor. It is the case of the prosecution that on 28.4.99 at 7 P.M., the accused was found 2 CRL.A.No.799 OF 2003 in possession of 13 bottles of A J Fenny containing 180 ml. each and thereby has committed the offence u/s.55(a) of Abkari Act. Ext.P1 is the seizure mahazar and it is seen from Ext.P1 that, the accused was found in possession of a plastic bag which contained 13 bottles of A J Fenny and it is written therein that `for sale in Karnataka only'. It is also stated that the two bottles were opened, smelt, thereafter sample was taken and the accused was arrested and further proceedings launched. The learned counsel for the appellant would strongly contends before me that, the independent witnesses in this case have turned hostile and there is contradiction with respect to the evidence of official witnesses and therefore it is not a fit case where the court can rely upon the evidence of the official witnesses to convict the accused. I am perfectly on agreement with the contention that, if there is any material contradiction with respect to the evidence of the official witnesses, it can not be relied. But on a meticulous screening and scanning, I am not able to find any material contradictions, 3 CRL.A.No.799 OF 2003 except for stating that one had stated that it is on the northern side of the Bhajana madham whereas another person will say it is on the eastern side. The crux of the matter is, whether the accused was found in possession of these bottles, in and around Bhajana madham described in the scene mahazar. I find there is absolutely no contradiction with respect to the same. A reading of evidence of PW1 would show that, on that eventful date, when they reached the place they saw the accused standing with a plastic bag and when he attempted to run, he was stopped and examined and it was found that in a plastic bag he had 13 bottles AJ Fenny liquor. He had also spoken about the opening and smelling and later sampling, sealing and producing it before the court. It is true that, in the cross examination as I stated earlier, that there is some difference with respect to the place from where he was seen. PW1 had also stated that it was about 7 P.M. and there was a torch. PW4 is the Sub Inspector of police who had detected the crime. He had also spoken about the presence of the 4 CRL.A.No.799 OF 2003 accused, his apprehension, search and seizure and also the sampling and producing it before the court. In the cross examination, he would say that they reached at the time of 7 O'clock and it was not very dark. It has to be remembered that the alleged incident is in April 1999 and ordinarily in April, there will be day light for a long time. So evidence of Pws.1 and 4 would convincingly establish that the accused was apprehended near the place of the Bhajana madham with 13 bottles of liquor which was found to be A J Fenny, which was intended to be sold in the state of Karnataka. The chemical analysis report would reveal that the Magistrate has addressed that as early as on 30.4.99 itself, would indicate that the samples have been produced immediately before the court and that has been forwarded. The chemical analysis report further reveal that the seal on the bottles were intact and found tallied with the sample seal provided. It also contain 44.15 % by volume of ethyl alcohol. So the detection, the proper sampling and the percentage of ethyl alcohol present are all established 5 CRL.A.No.799 OF 2003 and the evidence connects, the possession of the liquor with the accused. Now so far as it relates to S.55(a) of Abkari Act it has to be remembered that, unless it has been illegally transported, it should have come to the State of Kerala for the reason that, A J Fenny liquor was only entitled to be sold in the State of Karnataka as per the label in the bottle. So the possession, sale and transporting is also evident in this case, which would attract S.55(a) of Abkari Act. Therefore I sustain the conviction u/s.55(a) of Abkari Act. 3. Now turning to the question of sentence. The court below has been considerate to the accused and it had convicted the accused only for a period of 6 months and default sentence of 2 months. A perusal of the materials would show that, what was possessed was 180 ml. of 13 bottles and that too a foreign liquor which is not a prohibited liquor to be drunk, by the State of Kerala. Considering the age and as there is no previous antecedent or conviction, I am inclined to bestow little more leniency regarding the sentence and thereby 6 CRL.A.No.799 OF 2003 I reduce the sentence of imprisonment to a period of 2 months of simple imprisonment and the default sentence to 1month of simple imprisonment. In the result, the criminal appeal is disposed of a follows :- 1.The conviction and sentence u/s.55(a) of Abkari Act is confirmed. 2.The sentence is modified and the accused is sentenced to undergo simple imprisonment for a period of 2 months and to pay a fine of Rs.1 lakh and on default a further simple imprisonment of one month. He is also entitled to set off as contemplated u/s.428 of Cr.P.C.. The court below shall execute the sentence. M.N.KRISHNAN, JUDGE ami.