IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 CRL.A.No. 1941 of 2003() ---------------------------------- SC.67/2001 of IIIRD ADDL. SESSIONS COURT (ADHOC), THRISSUR .................... APPELLANT(S): ACCUSED --------------------- ANTU, S/O. AUGUSTY, CHURAKKAL HOUSE, KORATTY KIZHAKKEMURI VILLAGE, NELUKETTU. BY ADVS. SMT.K.V.BHADRA KUMARI SMT.SHIBI. K.P. RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CRL.M.A. NO.12453/2003 IN CRA.NO. 1941/2003 DISMISSED 10.06.2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE TSS M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1941 OF 2003 = = = = = = = = = = = = = = = Dated this the 10th day of June, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed in S.C.67/01 of the III Addl. Sessions Judge (Adhoc) Fast Track Court-I), Thrissur. The accused was charge sheeted for the offence u/Ss. 55(i) and 58 of the Abkari Act. He was convicted under both the sections and was sentenced to undergo imprisonment for one year and to pay a fine of Rs.1,00,000/- with a direction that the sentence shall run concurrently and additional sentence of three months was also awarded in default of payment of fine. 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 connect the accused u/Ss. 55(i) and 58 of the Abkari Act. Crl. Appeal NO. 1941 OF 2003 -:2:- (2) Whether the judgment of the Court below calls for interference? (3) What shall be the quantum of punishment. Points: 3. It is the case of the prosecution that on 13.11.1998 at about 6.30 p.m. from a mud pathway the accused was arrested and the liquid in his possession contained in a jerry Can was seized. It was found in smell and taste as arrack. Therefore after arresting him the liquid was seized and sample was taken in his presence in three bottles and thereafter he was produced before the Court along with the material objects on 14.11.98. 4. On behalf of the prosecution PWs.1 to 4 and DW1 were examined. Exts.P1 to P8 and Mos1. and 2 were marked. PW1 and PW2 are the police officials who had detected and arrested and seized the liquid from the possession of the accused. PW1 was the Sub Inspector of Police who had deposed before Court that on 13.11.98 while they were patrolling, from a distance of 30 mts. on the mud road they Crl. Appeal NO. 1941 OF 2003 -:3:- were able to see a person pouring a liquid into a glass to another person and so they rushed to the spot and by the time the person who was receiving the liquid in a glass left it there and ran away but the police caught hold of the other person who was having a jerry Can namely the accused and thereafter he was arrested sampling and selling was done and later produced before Court. PW2 was a constable who was available with PW1 at that time and he had also spoken about the seizure, arrest etc. in the same way. They were cross examined at length and nothing has been brought out to discredit their evidence. 5. Learned counsel for the appellant urged before me two points for consideration. According to the learned counsel there is discrepancy regrading the scene of occurrence as spoken to by PWs.1 and 2 and in the documents. In spite of the fact there is a mandate that independent witnesses should be there to evidence the witness, seizure etc. it is absent and so it is a material illegality which has to be viewed in favour of the accused. Crl. Appeal NO. 1941 OF 2003 -:4:- 6. So far as the place of incident is concerned the place is some where near a junction and Ext.P1 also would reveal that it was on the mud pathway the accused was found to be standing. I had meticulously perused the documents Exts.P1 to P5, scene mahazar as well as the sketch. The scene mahazar also refers to a old electric post but it is not seen marked in the sketch. Both the witnesses speak about the junction and it is very clearly stated from what distance they were able to see this person on the main road. Just because an electric post is not marked by the village officer one cannot come to a conclusion that what is spoken to by PWs.1 and 2 are incorrect. The place where the incident is detected is properly spoken to by PWs.1 and 2 and it is supported by Exts.P1 and P5. The case is regrading the absence of independent witnesses in Ext.P1 mahazar. Under S.36 of the Abkari Act the witnesses shall include two persons neither of whom is an Abkari, police or a village officer. So admittedly in this case there is no such independent witnesses. PW1 has spoken about the fact that independent witnesses Crl. Appeal NO. 1941 OF 2003 -:5:- were not available at the place. The mere presence of some residential house at the junction or a solitary house nearby the place of incident does not ipso factor follow that large number of people were available at that time. It has to be borne in mind that it was at about 6.30 p.m. the incident is detected by the police which takes place on a narrow mud pathway. The question of non compliance of S.36 has been considered by a Division Bench of this Court in the decision reported in Madhavan v. Excise Inspector (2000(1) KLT 311). It is held therein that “Requirement under the proviso is clearly linked with the procedure to be followed while conducting search and that is in terms of the Code. Category of persons to be called upon to attend and witness the search is indicated in the proviso and they have really nothing to do with mandatory or directory nature of the provision. It is clear that S.36 only provides safeguard to accused during search and even if there is any infraction, that will not vitiate the trial if materials brought on record justify the conviction. It is for the court to decide what Crl. Appeal NO. 1941 OF 2003 -:6:- weightage can be attached to the evidence in that regard.” 7. Now the absence of independent witnesses had been explained by PW1. The evidence of PW1 and PW2 being official witnesses has to be meticulously scrutinized. A meticulous scrutiny of PWs.1 and 2 would reveal that they had spoken about what had happened there. They had no previous enmity with the accused. Just because the accused being a congress worker they are attempting to harass him by the opposite party by influencing police is not supported by any real materials. Therefore when the intrinsic value of the evidence is accepted, the mere non-compliance of the provision cannot be taken as a ground for acquitting the accused. 8. So far as the sampling and sealing are concerned the learned counsel argues that label was not there but it has been properly sealed. It was seized on 13.11.98 at 6.30 p.m. and it had reached the Court by 2.20 p.m. on 14.11.98. There is nothing to suspect the act of Investigating Officers. Further when the bottles were received for chemical analysis the Crl. Appeal NO. 1941 OF 2003 -:7:- sample and the seal was found to be in tact. So I do not see any ground to disagree with the learned Sessions Judge who arrived at a decision that the accused has committed the offence. I find that the accused is guilty and he has been rightly convicted u/s 55(i) and 58 of the Abkari Act. 9. So far as the sentence is concerned the accused is sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/-. The Court below has also noted that he has got wife and two children to be looked after and he is an auto rickshaw driver by profession. It is true that attempting to sell illicit liquor is a major menace to the society which has to be dealt with by iron hands. When people who are extremely finding it very difficult to make their both ends meet the social fabric of the society also requires that some leniency need to be shown to such persons unless it is dangerous. Therefore taking into consideration all these aspects I reduce the imprisonment from one year to six months and also reduce the default sentence from three months to one month. Crl. Appeal NO. 1941 OF 2003 -:8:- In the result the appeal is disposed of as follows. (1) The guilt of the accused u/Ss. 55(i) and 58 are confirmed. (2) The sentence is modified and the accused is sentenced to undergo simple imprisonment for a period of 6 months u/ss. 55(i) and 58 each which shall run concurrently and also pay a fine of Rs.1,00,000/- in default of which he shall undergo simple imprisonment for a period of one month more. (3) He is also entitled to set off u/s 428 Cr.P.C. M.N. KRISHNAN, JUDGE. ul/-