IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933 CRL.A.No. 131 of 2004(B) ------------------------ SC.101/2000 of ADDL. SESSIONS COURT (ADHOC)-II, ALAPPUZHA .................... APPELLANT/ ACCUSED --------------------- SOMAN PILLAI, AGED 48 YEARS, S/O.SANKARAN KARANAVAR, PUTHUPURAKAL VEEDU, BHARANIKKAVU VILLAGE, MAVELIKKARA. BY ADV. SRI.K.S.ANIL RESPONDENT/COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. (CRIME NO.127/97 OF THE EXCISE RANGE, MAVELIKARA) PUBLIC PROSECUTOR, SMT.S.HYMA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.S.GOPINATHAN, J. ------------------------------ Crl.A. No. 131 OF 2004 -------------------------------- Dated this the 16th day of November, 2011 J U D G M E N T ~~~~~~~ The appellant is the accused in Sessions Case No.101/2000 on the file of the Additional Sessions Judge, Fast Track-II, Alappuzha. The learned Additional Sessions Judge convicted the appellant for offence under Section 55(a) of the Abkari Act. The prosecution case is that at 1 p.m., on 29.10.1997, while PW1 and PW2, two Preventive Officers attached to Excise Range, Mavelikara while moving on patrol duty along Kattanam- Mavelikara road found the appellant coming across with a plastic can which was marked as MO1. Seeing PWs 1 and 2, the appellant got puzzled. PWs 1 and 2 suspected that MO1 might contain some contraband. They approached the appellant. The contents in MO1 was tested by smell and taste and found that it contains 4 litres of arrack. MO1 was seized, for which Ext.P1 seizure mahazar was prepared. Appellant was arrested. A case was registered for which Ext.P2 occurrence report was prepared. The investigation was taken over by PW8, who after completing the investigation laid the chargesheet before the Crl.A.No.131/2004 2 Judicial Magistrate of the 1st class, Kayamkulam. Finding that the offence alleged is exclusively triable by a court of session, the case was committed to the court of Session, Alappuzha from where it was made over to the Additional Sessions Judge. 2. Responding to the process, the appellant appeared before the Additional Sessions Judge and pleaded not guilty to the charge when the charge framed was read over and explained. Therefore, he was sent for trial. On the side of the prosecution, PWs 1 to 8 were examined. Exts.P1 to P3 and MO1 were marked. After closing the evidence for prosecution, the appellant was questioned under Section 313 of the Code of Criminal Procedure. The appellant took a defence of total denial and further contended that he was falsely implicated for the reason that he had objected the conduct of a toddy shop near his house. Responding to the call to enter the defence, one witness was examined as DW1, who had deposed that the appellant and himself were members of the agitating group against the toddy shop. The learned Additional Sessions Judge, on appraisal of the evidence on record, arrived at a conclusion that PWs 1 and 2 are Crl.A.No.131/2004 3 creditworthy witnesses and that by the evidence of PWs 1 and 2, the seizure of the contraband was proved. The evidence of DW1 was disbelieved. Consequently, the appellant was convicted and sentenced to undergo rigorous imprisonment for one year and a fine of Rs.1 lakh. In default of payment of fine, the appellant was sentenced to undergo rigorous imprisonment for a further period of three months. Now this appeal. 3. I have heard the learned counsel appearing for the appellant as well as the learned Government Pleader and perused the judgment impugned as well as the records. PWs 1 and 2 are the official witnesses, who had detected the contraband. PWs 3 and 4, who were cited as independent witnesses, turned hostile. PWs 5 and 6 are attestors to Ext.P1. Since the independent witnesses turned hostile, I had a careful scrutiny of the evidence of PWs 1 and 2. Though they were subjected to searching cross examination, there is no much material disclosed to disbelieve them. Their evidence inspires confidence. The learned counsel for the appellant submitted that Ext.P1 would show that it was produced before the court on Crl.A.No.131/2004 4 1.9.1999. The delay in producing the document was not at all put to PWs 1 and 2 or to the investigating officer. The learned Additional Sessions Judge had rejected the plea of delay in producing Ext.P1, after taking note that the thondi articles and the occurrence report were produced before the court along with the remand report. Going by the records, I find that the observation made by the Additional Sessions Judge is correct. The appellant was seen produced before the Magistrate on the same day. The property list was also seen produced before the committal court on the date of seizure itself. In the above circumstance, the delay in producing Ext.P1 is not much fatal so as to throw out the prosecution case as such. 4. Ext.P3, the report of the Chemical Examiner, would show that the sample contained 22.98% by volume of Ethyl Alcohol. Ext.P3 was also not assailed, while cross examining the investigating officer. In the above circumstance, I find no good reason to interfere with the finding of the Additional Sessions Judge that the prosecution had succeeded to establish the seizure of the contraband from the appellant. The conviction Crl.A.No.131/2004 5 under Section 55(a) is unassailable. Having taken into account that there is no bad antecedent and that the appellant was not involved in any subsequent crime and the quantity involved, I find that the appellant is entitled to a little leniency in substantial sentence and that sentence of rigorous imprisonment for four months would meet the ends of justice. The fine imposed is the minimum and no good reason to reduce. 5. In the result, the Criminal Appeal is allowed in part. While confirming the conviction, the substantive sentence is reduced to rigorous imprisonment for four months. In all other respects, the impugned judgment is confirmed. The order imposing fine is sustained. The under trial imprisonment, if any, shall be set off. (P.S.GOPINATHAN, JUDGE) ps/16/11