IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 CRL.A.No. 1184 of 2003 ------------------------------- SC.77/2002 OF ADDL. SESSIONS COURT (ADHOC)-II, PALAKKAD ........................................ APPELLANT(S): ACCUSED: ------------------------------------- CHAMI ALIAS SWAMINATHAN, S/O.KUNCHAN, MADAMBIKKAD, KAVASSERI, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SMT.P.MAYA RESPONDENT(S): COMPLAINANT: ------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1184 OF 2003 = = = = = = = = = = = = = = = Dated this the 12th day of June, 2009. J U D G M E N T This appeal is preferred against the order of conviction in S.C.77/02 of the Addl. Sessions Judge, Fast Track Court-II, Palakkad. It is the case of the prosecution that on 4.11.98 at about 11.40 p.m. the accused was found unauthorizedly keeping wash and two liters of arrack and was manufacturing illicit arrack in his house at Madambikkad in Kavasseri village in Alathur Taluk. Therefore search was conducted on the premises, the wash and arrack were seized and thereafter a case was registered and prosecuted. The trial court on a consideration of the materials before it found that the accused is guilty of the offence punishable u/Ss. 55(a) and (g) of the Abkari Act and thereafter convicted him and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,00,000/- in default for a further imprisonment of 6 months. It is against this decision the accused has come up in Crl.A. 1184 OF 2003 -2- appeal. The points that arise for determination in this appeal are: (1) Whether there is sufficient evidence to establish that the accused had committed the guilt u/Ss. 55(a) and (g)? (2) Whether the conviction and sentence passed by the court below requires any interference? and (3) In case of guilt what is the proper punishment? Points: 2. Learned counsel for the appellant had very strongly contended before me that the material evidence is totally lacking to connect the accused with the house wherein the raid is alleged to have taken place and it is also contended that the evidence of the official witnesses are not trustworthy to warrant a conviction and further that the liquid which was alleged to be seized had reached the Court after a long gap which will create a suspicion that there was possibility of tampering with the same and so the prosecution has miserably failed to prove the case. The learned counsel had taken me through the depositions, documents and relevant sections to argue his case. Crl.A. 1184 OF 2003 -3- 3. First I will refer to the documents in this case. Ext.P1 is the search memo posted on getting information that the accused was distilling illicit arrack in his residential premises. It is seen prepared at 11.10 p.m. on 4.11.98 by the detecting officer who is unfortunately no more now. Ext.P2 is the articles found on search which takes in containers as well as the wash and arrack and other things utilized for the manufacture of illicit arrack. Ext.P3 is the scene mahazar prepared and it is produced to show that the articles were found in the house of the accused. Ext.P4 is the arrest memo. Ext.P5 is a report submitted by the Excise Inspector. Ext.P6 is the building tax receipt alleged to be handed over to the detecting officer by the accused for the house No.2/587 relating to the period 97-98. Ext.P7 is the contradiction marked and Ext.P8 is chemical examiner's report which would show that the samples contained 5.64, 7.56 and 14.55% of ethyl alcohol by volume. Ext.P9 is the forwarding letter. 4. Now I will refer to the evidence in this case. PW1 is the preventive officer of the Excise range who accompanied the detecting officer on the alleged date of search and seizure. Crl.A. 1184 OF 2003 -4- He had deposed before court that on reliable information that the accused was distilling illicit arrack have proceeded to his house and they found one person with a torch attempting to proceed to the northern side of the house and so he was apprehended and when the kitchen of the house was searched it was found that the utensils necessary for distilling illicit arrack with wash was available and it was being prepared at that time. They also found the liquid liquor which on taste revealed that it was alcohol. It is also deposed by him that the accused handed over a tax receipt and thereafter in the presence of the witnesses a sample was taken and the remaining wash was destroyed and the accused along with the articles were produced before court on 5.11.98 itself. In the cross examination he had stated that there is no door to go outside from the kitchen and that the witnesses CW1 and 2 are residing away from the place of incident and they were returning back after seeing a cinema. It is also deposed by him that specimen seal is not put in the seizure mahazar. He had also deposed that there is no label in MO6. He had further reiterated that from the information furnished by the Crl.A. 1184 OF 2003 -5- accused coupled with the Property tax receipt and inquiry the Excise Commissioner came to the conclusion that it was his house. It is also found that there was no number visible at that time. PWs.2 and 3 are the independent witnesses who had turned hostile to the prosecution and a suggestion is put to the effect that in the cross-examination that they were workers under the contractor of the toddy shop. PW4 is the Circle Inspector of Excise who had conducted the investigation and recorded the evidence and he had deposed that they had not conducted any further inquiry regarding the house No. or the ownership of the house and whether there was any other case against the accused. It is also specifically put to him that it was not house No.587/ Ward II that was searched. PW5 is another excise official who had accompanied the detecting officer and in the chief-examination he had also spoken about as done by PW1. In the cross-examination he would say that according to him there is a door to go outside the kitchen. He had also spoken about the sampling and sealing and that there was no number for the house. According to him he had seen the wife and sons in the house Crl.A. 1184 OF 2003 -6- which he did reveal only at the time of evidence. The evidence of PW1, 2 and 5 would reveal that the accused was found in the premises when they searched and it was from the kitchen of that house it was found. Therefore I am satisfied that the possession of wash and liquor in the possession of the accused had been established by the evidence of PWs.1 and 5. Just because one does not find the house number in a conspicuous place of a house it does not mean that the house does not have a number. Therefore believing the evidence of PWs.1 and 5 coupled with the materials available before Court I do agree with the finding of the Court below. I am convinced that the prosecution has succeeded in proving that the accused was found in the house where the search was conducted and illicit arrack and wash were found in his possession. 5. The next point is regarding the finding on the tampering of the seal. I had meticulously scrutinized and found that the said articles were produced before the learned Magistrate as early as on 5.11.98, i.e. immediately within 24 hours of its detention. Items 10, 11 and 12 are the sealed Crl.A. 1184 OF 2003 -7- samples of the liquor. The seizure mahazar coupled with the evidence of PWs.1 and 5 would establish that the sample was taken from the liquid which was found in the possession of the accused in the premises from where he was arrested. So one cannot hold that there is any delay in producing the samples other than the material objects and the accused before Court. Endorsement on the back of the thondy list would also show that other than items 1 to 4, rest of the items were kept in the Court custody and therefore there was no possibility of tampering of the seal regarding the liquor. PWs.1 and 5 had spoken about that they had taken the sample from that place itself inspires confidence and therefore the technical objection raised by the learned counsel is not available to him. The learned counsel had relied upon some decisions and the decisions would only indicate one fact that the conscience of the Court should be satisfied that there is no possibility of any tampering of the sample before it reaches the Court. There are no materials here to show contra and it appears to be properly done which does not call for any interference. Crl.A. 1184 OF 2003 -8- 6. Lastly the learned counsel would strongly contend before me that PWs.2 and 3 who are independent witnesses had turned hostile and from their evidence it has come out that they are working in a toddy shop and the evidence of the accused is to the effect that when the accused and others complained about the quality of toddy that was sold the contractor had foisted a false case with the help of this person. 7. Whether the evidence of official witnesses can be accepted was the subject matter before the Courts for a considerable length of time and the principle laid down in those decisions are that when a person who is interested in the prosecution is tendering evidence the Court has to meticulously scrutinize and scan the evidence and should be sure about the acceptability of the same. Or in other words it is the intrinsic reliability and inherent probability that has to be considered in evaluating their evidence. PW1 and 5 were only discharging their official function as excise officials. They had no axe to grind against the present accused. Therefore the evidence on a reading would show that it is consistent and it does not contain untruthfulness. Therefore as rightly found Crl.A. 1184 OF 2003 -9- by the Court below I too feel their evidence can be relied upon for the purpose of arriving at the guilt of the accused. From these discussions I find that there is nothing to interfere with the conviction passed by the Court below u/s 55(a) and (g) of the Abkari Act. 8. Now turning to the sentence. The Court below has convicted the accused to undergo three years rigorous imprisonment and to pay a fine of Rs.1,00,000/- and in default to further undergo imprisonment for a period of 6 months. The accused when questioned and as seen from the evidence of prosecution, has got wife and children to be looked after and he is aged only 38 years. Putting him behind the bars for a long time would affect the whole family and therefore I feel some leniency can be shown though the offence involved is a social menace. Taking into consideration the facts and circumstances and the submissions of the learned counsel for the appellant I am inclined to reduce the sentence of rigorous imprisonment of three years to one year simple imprisonment and default sentence be reduced from six months to three months. Crl.A. 1184 OF 2003 -10- In the result the Crl.A. Is disposed of as follows. (1) The finding of guilt u/s 55(a) and (g) are confirmed. (2) The sentence is modified and the accused is sentenced to undergo simple imprisonment for a period of one year for the offences u/s 55(a) and (g) and to pay a fine of Rs.1,00,000/- and in default of which he shall undergo simple imprisonment for a further period of three months. (3) There is no mention of the conviction under both the sections separately. Even if it is not there it has to be treated as concurrent sentence. I make it clear that the total period of imprisonment shall be one year and not more. The lower Court shall execute the sentence. (4) Accused is entitled to set off u/s 428 Cr.P.C. M.N. KRISHNAN, JUDGE. ul/-