IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929 CRL.A.No.975 of 2007(B) ------------------------------ SC.48/2002 OF ADDL. SESSIONS COURT (ABKARI), KOTTARAKKARA. CP.37/2001 of JUDL.MAGISTRATE OF FIRST CLASS-I, PUNALUR .................... APPELLANT: APPELLANT ----------------------------- RADHAKRISHNAN, C.NO.1421, CENTRAL PRISON, TRIVANDRUM. BY ADV. ADV.INNOCENT FRANCIS PAPPALI RESPONDENT/STATE: ------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.975 of 2007 ------------------------------------------------ Dated this the 17th day of January, 2008 JUDGMENT This appeal is filed by Convict No.1421 of Central Prision, Thiruvananthapuram assailing the conviction and sentence passed against him by Additional Sessions Judge (Abkari), Kottarakkara in S.C.48/02 vide judgment dt.25/01/07. By the said judgment he was convicted for offence under Section 55(a) read with Section 8(1) and (2) of the Abkari Act and sentenced thereunder to undergo simple imprisonment for two years and to pay a fine of Rs.1 lakh and in default to undergo simple imprisonment for a further period of three months. 2. Prosecution case is that at about 12.30 p.m. on 07/05/99 the appellant was found in possession for sale and in transit four litres of arrack in five litre can walking Crl. Appeal No.975 of 2007 -2- through the Southern side of the road in front of the oil palm office at Thinkal Karikkom by CW1 the Preventive Officer attached to the Excise Range, Anchal and party. 3. When the appellant appeared in the court below, the court below heard preliminary arguments; framed charge against the appellant under Section 55(a) read with Sections 8(1) and (2) of the Abkari Act; read over and explained it to the appellant and questioned him. Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted by the court below. 4. Prosecution examined PWs.1 to 6, got marked Exts.P1 to P7 and got identified MO1. On the prosecution closing their evidence, the accused was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is Crl. Appeal No.975 of 2007 -3- innocent. However, he did not adduce any evidence in defence. The court below heard arguments and considered the case in the light of the evidence adduced as aforesaid found the appellant guilty of the offence punishable under Section 55(a) read with Section 8 (1) and (2) of the Abkari Act convicted him thereunder and sentenced him as already stated. Hence, this appeal by the appellant from jail. 5. As the appellant had not appointed any lawyer to argue the appeal on his behalf Advocate Sri.Innocent Francis Pappali was appointed as counsel on State Brief to argue the appeal on behalf of the appellant. 6. Arguments of counsel on State Brief and the Public Prosecutor are heard. 7. It is vehemently contended before me by the learned counsel appointed on State Brief on behalf of the appellant that there is Crl. Appeal No.975 of 2007 -4- no convincing evidence as regards the commission of the offence by the appellant; that the material objects were not produced before court forthwith on seizure and that the evidence of PW2 shows that the appellant was intercepted only after he ran about 10 to 25 metres whereas Ext.P2 mahazar shows that he was being intercepted even before his taking to his heels to a distance of about 10 to 25 metres and that in the absence of the testimony of CW1 who is the Detecting Officer it cannot be believed on the evidence of PW2 which is not consistent with the recitals in Ext.P2 that the occurrence is genuine. 8. The pivotal question to be considered in a case of this nature is as to whether the essence of the prosecution case that the appellant was found carrying arrack with him is correct or not. According to the prosecution, the occurrence has taken place at Crl. Appeal No.975 of 2007 -5- about 12.30 p.m on 07/05/99. Ext.P1 is the crime and occurrence report prepared on the same day of the occurrence and that has reached the court on 07/05/99 itself. The date and time of the occurrence also is mentioned therein as 12.30 p.m. on 07/05/99. Ext.P2 is the mahazar prepared at 12.30 p.m on 07/05/99 intercepting the appellant and effecting seizure of MO1 from his possession. Ext.P2 also has reached the court on 07/05/99 itself. Ext.P3 is the arrest memo of the accused effecting arrest of the appellant/accused on 07/05/99. Ext.P4 is the intimation of arrest of the appellant given to the wife of the appellant and that also is dt.07/05/99 and is produced also before court on 07/05/99. All Exts.P1 to P4 having been produced on 07/05/99 itself before court, there is no reason at all to think that actually no such occurrence has taken place and that the case is falsely Crl. Appeal No.975 of 2007 -6- foisted against the appellant. 9. The further contention is that the material object was produced before court belated and chances of tampering with the material objects cannot therefore, be ruled out. It is true that Ext.P5 was produced in court only on 10/05/99. The delay in its production is only of three days. While cross examining the witnesses in the case, there is not even a suggestion made in cross examination on behalf of the appellant that any prejudice is caused by the delay of three days in production of the material objects before court or that within the said three days there was any tampering with either the samples or MO1 Can which contained the balance quantity of arrack after taking samples. 10. CW1 was the detecting officer and PW2 is an Excise Guard who was accompanying CW1 in the detection and seizure. His evidence along Crl. Appeal No.975 of 2007 -7- with the production of Exts.P1 to P4 undoubtedly established the seizure having been effected on 07/05/99 and of the appellant also having been arrested on the same day. It is worthy to note that the appellant was produced before court with remand application on the same day. This also suggests that the prosecution case cannot but be true. It is for reason of CW1 being not available for examination that argument is advanced that the evidence of PW2 alone is insufficient to establish the prosecution case. CW1 is not examined as he is no more. The non-examination of a witness who is dead cannot be taken advantage of to canvass for an acquittal by the defence when materials are there which would establish that the prosecution case alleged is true. 11. The fact that PWs.4 and 5 are hostile, has no bearing on the merits of this Crl. Appeal No.975 of 2007 -8- case as contended. PW4 is a hostile witness. He has stated in the initial part of his examination that he has not signed in Ext.P2 mahazar and in cross examination by the Prosecutor he has stated that he does not remember whether the signature in Ext.P2 is his signature but however, he admitted that the signature of attestor seen in Ext.P2 and his signature in the summons is having similarity. Finally, he said that he signed in the mahazar on the direction of the police he being afraid of the police. However, he has also stated that at the time of affixing the signature he was aware that he is signing in a mahazar as witness. 12. Almost same is the case of PW5 the attesting witness. He also turned hostile to the prosecution. He has admitted that the appellant/accused is his next door neighbour having acquaintance with him for the last Crl. Appeal No.975 of 2007 -9- twenty years though he states that he is not aware as to whether he is having business of sale in arrack. The mere fact that PWs.4 and 5 have turned hostile, by itself will not be detrimental to the prosecution case so as to entail an acquittal. 13. PW3 is the Preventive Officer of Excise at Anchal. He has deposed that he was Excise Guard on 07/05/99 and he was one who produced the appellant before court along with remand report and along with Exts.P1 to P4. The remand report as also Exts.P1 to P4 substantiate the said statement. According to him, he produced MO1 and the samples also before court that having been entrusted with him by PW1. All the same, Ext.P5 shows that the material objects were produced only on 10/05/99 and even on that date the learned Magistrate was permitting the material objects other than the samples being retained by the Crl. Appeal No.975 of 2007 -10- Excise Inspector, Anchal until further orders. This means that at least the samples were accepted in court on 10/05/99 viz. on the third day of the occurrence. The samples were forwarded for chemical examination. Ext.P6 is the duplicate copy of the requisition forwarded by the Excise Inspector to have the samples subjected to chemical examination and that was being forwarded along with Ext.P5 on 10/05/99. Column 4 of Ext.P6 shows that it was a sealed bottle containing 300 ml. of arrack that was so desired to be forwarded for Chemical Analysis. There is no defect noted by the court below in the samples produced and Ext.P7 report of Chemical Analysis shows that the seal on the bottle was in tact and it tallied with the sample seal provided. In the light of Exts.P5, P6 and P7 there is no room to think that the sample of arrack taken on 07/05/99 under Ext.P2 mahazar had been Crl. Appeal No.975 of 2007 -11- tampered with. 14. In the light of the evidence of PW2 corroborated by the documentary evidence Exts.P1, P2, P3 and P4, the prosecution case that the appellant was arrested with arrack contained in MO1 Can and that he was arrested at the scene of occurrence on 07/05/99 and the material objects were taken into banthavast and sample also was taken therefrom stands established convincingly. In the circumstances, there is no reason why the finding of the court below is to be interfered with in appeal. Hence, concurring with the court below, I find that the appellant has committed offence punishable under Sections 55(a) read with Section 8(1) and (2) of the Abkari Act. 15. It is finally contended before me by the counsel on State Brief that the substantial term of imprisonment awarded to the appellant is excessive when considering Crl. Appeal No.975 of 2007 -12- the quantity of arrack involved and especially when the minimum fine that is imposed on the appellant is an amount of Rs.1 lakh. Considering the entire circumstances of the case, I am of the view that the substantive term of imprisonment has to be reduced to eighteen months maintaining however, the imposition of fine and the default sentence. 16. In the result, while confirming the conviction of the appellant for offence under Section 55(a) and 8(1) & (2) of the Abkari Act, I modify the sentence awarded to the appellant by reducing the substantive term of imprisonment to one and half years (eighteen months). The imposition of fine of Rs.1 lakh and the sentence in default of fine are however, maintained. 17. Communicate a copy of this judgment to the appellant through the Superintendent of Central Prison, Thiruvananthapuram. In case Crl. Appeal No.975 of 2007 -13- the appellant has already undergone the sentence of imprisonment as modified above including the default sentence, if at all the fine amount is not paid, he shall be released forthwith provided further that his detention is not required to be had in connection with any other case. K.P.BALACHANDRAN, JUDGE kns/-