IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 CRL.A.No. 8 of 2003() --------------------- SC.646/1999 of ADDL.SESSIONS COURT (ADHOC) II, KASARAGOD .................... APPELLANT(S): ACCUSED --------------------- P.P.RAGHAVAN S/O. PAPPU, 52/99, POOPPARAMBA, ERUVESSY VILLAGE, CHEMBERI, KANNUR DISTRICT BY ADV. SRI.V.RAJGOPAL RESPONDENT(S): COMPLAINANT -------------------------- STATE-REPRESENTED BY S.H.O., CHANDERA POLICE STATION, THROUGH PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI P. RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31/07/2009, THE COURT ON 21/08/2009 DELIVERED THE FOLLOWING: P.Q. BARKATH ALI, J. -------------------------------------- CRL.A. 8 of 2003 -------------------------------------- Dated: AUGUST 21, 2009 JUDGMENT The challenge in this appeal by the accused is to the judgment of the Addl. Sessions Court (Ad hoc) II, Kasaragod in S.C.No.646 of 1999 dated December 21, 2002 convicting the appellant/accused under sec.55(a) of the Abkari Act and sentencing him to undergo rigorous imprisonment for two years and to pay a fine of Rs.1 lakh, in default to undergo rigorous imprisonment for a further period of six months. 2. The case of the prosecution as shaped in evidence before the lower court was that on September 3, 1999 at about 2.10 p.m. the accused was found in possession of 100 packets of Karnataka made arrack of 100 ml. each in front of one Aruna Pharmacy near Cheruvathur bus stand and that thereby he committed an offence punishable under sec. 55(a) of the Abkari Act. 3. The Judicial First Class Magistrate Court - I, Hosdurg, took cognizance of the offence and, as the case was triable before a Sessions Court, committed the case to the Sessions court, Kasaragod from where it was made over to the Assistant Sessions Court, Hosdurg and subsequently it was withdrawn and CRL.A. 8 of 2003 2 transferred to the trial court for disposal. On appearance before the lower court, the appellant/accused pleaded not guilty to a charge under sec. 55(a) of the Abkari Act. Pws.1 to 6 were examined and Exts.P1 to P8 were marked and M.Os. 1 to 3 series were produced by the prosecution. When questioned under sec.313 Cr.P.C. by the lower court, the accused denied the entire incident. No defence evidence was adduced. The lower court on an appreciation of the evidence found the appellant/accused guilty of the offence punishable under sec. 55(a) of the Abkari Act, convicted him and sentenced him as aforesaid. The appellant/accused challenges the said conviction and sentence in this appeal. 4. Heard the learned counsel for the appellant and the learned Public Prosecutor appearing for the State. 5. The only point which arises for consideration is whether the conviction entered and sentence imposed by the lower court against the appellant can be sustained. 6. On the side of the prosecution, Pws.1 to 6 were examined. PW.6, the then SI of Police, Chandera Police Station, is the detecting officer who arrested the accused from the spot with the material objects i.e. 100 packets of Karnataka made CRL.A. 8 of 2003 3 arrak of 100 ml. each. Ext.P2 is the arrest memo and Ext.P3 is the FIR. Ext.P4 is the property list and Ext.P5 is the forwarding note. PW.1 is the Police Constable who accompanied PW.6 at the time of detection. Pws.2 and 3, the attestors to the seizure mahazar, turned hostile and declined to support the prosecution case. Pws.4 and 5 who are the attestors to Ext.P6 also turned hostile. Ext.P7 is the site plan and Ext.P8 is the report of the chemical analyst. 7. The learned counsel for the appellant argued that the independent witnesses have turned hostile and that therefore the lower court is not justified in believing the evidence of official witnesses, Pws.1 and 6. I find no merit in the above contention. It is settled law that the evidence of official witnesses can be relied on if found credible and trustworthy. In the present case I have gone through the evidence of Pws.1 and 6. No material discrepancies were brought out in cross-examination. Nothing was even suggested during cross-examination to show that they have any enmity towards the accused. Therefore the lower court is perfectly justified in believing their evidence and coming to the conclusion that the prosecution has succeeded in proving that the accused was found in possession of 100 packets of CRL.A. 8 of 2003 4 Karnataka made arrack of 100 ml. each as alleged by the prosecution. Ext.P8 chemical analyst report shows that the sample contained ethyl alcohol. 8. It was pointed out by the learned counsel for the appellant that when PW.6 was examined, he submitted that the scene of offence was shown to him by PW.1 and that if actually PW.6 has detected the offence, there was no need for PW.1 to show the scene of offence. In my view it is only a minor mistake committed by PW.6 and does not affect the credibility of the witness. I have gone through the evidence adduced by Pws.1 to 6. I find no reason to disbelieve their evidence. In my view the lower court is perfectly justified in believing their evidence and finding that the prosecution has proved the possession of illicit arrack by the appellant/accused as alleged by them. 9. It was next argued by the learned counsel for the appellant that there is no evidence on the side of the prosecution to show that the appellant was found in possession of illicit arrack for sale and that therefore sec.55(a) of the Abkari Act is not attracted on the facts of this case and that the accused should have been convicted under sec.58 of the Abkari Act as held by a Single Bench of this Court in Narikodan Purushan v. State of CRL.A. 8 of 2003 5 Kerala ILR (2002 (3) (Ker.) 315). I am unable to agree. The appellant was found in possession of 100 packets of Karnataka made arrack of 100 ml. each which itself shows that his intention was to sell the same, which is an offence punishable under sec.55 (a) of the Abkari Act. For all these reasons I am inclined to confirm the conviction of the appellant by the lower court under sec.55(a) of the Abkari Act. 10. As regards the sentence, the incident occurred in 1999, about ten years back. Therefore I feel that the sentence of imprisonment can be reduced to the period of remand undergone by him i.e. from 3.9.1999 to 15.10.1999. As regards the sentence of fine, the same being the statutory minimum is maintained. In the result, confirming the conviction of the appellant by the lower court under sec.55(a) of the Abkari Act, the appeal is dismissed. The sentence is modified to the effect that the substantive sentence is reduced to the period of imprisonment already undergone by him. The sentence of fine, being the statutory minimum, is maintained. P.Q. BARKATH ALI, JUDGE mt/-