IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 CRL.A.No. 353 of 2003() --------------------------------- SC.222/2000 of OF ADDL. SESSION'S JUDGE (AD HOC-II) KASARAGOD .................................................................................. APPELLANT(S): ACCUSED ------------------------------------- ACHUTHA, S/O.ADRU, 27/98, THALIPPADAPPU, KUDLU VILLAGE, KASARAGOD TALUK. BY ADVS. SRI.T.SETHU MADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENT(S): COMPLAINANT ----------------------------------------------- STATE OF KERALA, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.C.M.NAZAR, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.353 OF 2003 -------------------------- Dated this the 14th day of July, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the conviction and sentence passed by the Addl. Sessions Judge, Ad hoc - II, Kasaragod in S.C.222/00. The accused was charge sheeted for the offence u/s.55(a) of Abkari Act and was found guilty thereunder and sentenced to undergo rigorous imprisonment for a period of 1 year together with a fine of Rs.1 lakh and in default to undergo rigorous imprisonment for 3 months. It is against that decision the accused has come up in appeal. The points that arise for determination are, 1. Whether the materials are sufficient to hold the accused guilty u/s.55(a) of Abkari Act ? 2. In case of guilt, whether the sentence awarded is excessive ? 2. Points 1 and 2 :- It is the case of the prosecution that at about 1.30 P.M. on 24.8.98, the accused was found in 2 CRL.A.No.353 OF 2003 possession of a 10 ltr. can containing illicit arrack and that he was apprehended. PW1 is the Assistant Range Inspector. He has deposed that the accused was found, while they were patrolling and he had a 10 ltr. can with him. As he was perplexed, he was apprehended and was examined in the presence of the witnesses. The can contained liquid which on taste and smell found to be illicit arrack. In the presence of the witnesses, a sample of 300 ml. in 375 ml. bottle was taken and the balance liquid was also sealed and the said can marked as M.O.1. He had been cross examined at length and he would depose that the accused was coming alone. The suggestion is that, he was a `theyyam' artist and the excise officials had enemity towards him and that on finding a can in the paddy field, they had foisted a false case against the accused. It has been denied by him. He would further state that M.O.1 was empty, at the time of marking of the same. PW2, the independent witness and PW3 another witness, as usual had turned hostile for the reasons best known to them. PW4 is the Excise Inspector. He had spoken about the presence of the 3 CRL.A.No.353 OF 2003 accused, the apprehension, examination, sampling and sealing. He also speaks about M.O.1 and also about the forwarding note and the chemical examiner`s report. He has also stated in the cross examination that the jeep was stopped near the bus stop and they proceeded. It is also stated that the accused is a perpetual illicit arrack seller. It is suggested by him that only on account of enemity, an action is initiated against the accused, which had been denied. He would depose that M.O.1 was empty at that time and he does not know where and whose custody M.O.1 was. The principal point argued by the learned counsel is that at the time of marking, M.O.1 can was empty and therefore the whole case has to fall on that point. It has to be remembered that M.O.1 can was seized with illicit arrack from the accused and sample was taken from therein and it was sealed and produced and the balance liquor contained in M.O.1 was also sealed and even at the time of the examination, the seal was intact. But the container was empty. It has to be remembered that on the very day of the apprehension, the material objects had been 4 CRL.A.No.353 OF 2003 produced before the court. The court has verified and received the material objects. The safeguard that has to be taken in these type of case is to make it sure and satisfy the conscience, that the accused had a can with him, which contained liquor and it was that liquor which was taken as sample and sent for chemical analysis. Here along with the sample bottle, the container with the remaining liquor was produced before the court, which verified it and received it. It is well known that the property room of the Magistrate`s Court and the Sessions Court are in a very deplorable condition and material objects are really dumped inside the small room, one over the other, which results in loosing or leakage. Instances are not very rare, wherein the Fast Track Courts' material objects are placed, even inside the court hall for want of space. So it is most probably on account of the inept handling, the leak would have been taken and the can would have got emptied by leakage. When it is clear that the can with the liquid was produced before the court and it was verified and received on that basis, just because subsequently, the liquor has been lost 5 CRL.A.No.353 OF 2003 on account of leakage or vapourisation, whatever it may be, it does not warrant acquittal, if other materials are available. The evidence of PW1 and PW4 is clear about the fact that, the accused was apprehended with a can and the liquor was seized from him and sample was taken and produced before the court on the very same date. So far as the evidence of official witnesses are concerned, this court has held, in the decision reported in 1981 KLT Short Notes, page 9, case no.17, that the evidence of the official witnesses can be accepted, if on scrutiny it is found to be intrinsically reliable. On a scrutiny it is found that their evidence is consistent, trust worthy and reliable and so I hold that the court below had not erred in finding that the accused guilty u/s.55(a) of Abkari Act. 3. Now turning to the question of sentence. The court below has imprisoned the accused for a period of 1 year and to pay a fine of Rs.1 lakh and in default to undergo further imprisonment of 3 months. The learned counsel for the appellant would contend that, some leniency be shown for the reason that he has to look after his family and that he is not a 6 CRL.A.No.353 OF 2003 previous convict or having a criminal background. After considering the said argument and hearing of the prosecutor, I am inclined to reduce the sentence to 6 months simple imprisonment and I further reduce the default sentence to one of 2 months instead of 3 months. In the result the criminal appeal is disposed of as follows:- 1.The finding of guilt 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 6 months and to pay a fine of Rs.1 lakh and in default to undergo simple imprisonment of 2 months. He shall be entitled to set off as contemplated u/s.428 of Cr.P.C. M.N.KRISHNAN, JUDGE ami.