IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 20TH JANUARY 2009 / 30TH POUSHA 1930 CRL.A.No. 1949 of 2007() ------------------------ SC.36/2006 of ADDL.SESSIONS COURT(ADHOC) II, THODUPUZHA) .................... APPELLANT(S): -------------- GANDHI, C.NO.1834 CENTRAL PRISON, TRIVANDRUM BY ADV. MANJU ANTONY[STATE BRIEF] RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY A PUBLIC PROSEUTOR BY P.P. SRI AMJAD ALI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRLA . No.1949 OF 2007 ---------------------------------------------- Dated, 20th January, 2009. JUDGMENT This appeal is preferred by the 2nd accused in S.C.No.36 of 2006 of the Addl.Sessions Court (Adhoc)-II, Thodupuzha, challenging his conviction and sentence under sections 8(2) and 55(a) of the Abkari Act. 2. Originally there were two accused but when trial was pending, the Ist accused expired and only the 2nd accused faced the trial. 3. The prosecution case is that at 6 p.m. on 30.8.2003, in the Thuruthu in the middle of Pampar river at Pallanadu Kara, the accused herein along with the first accused was found distilling arrack. The sub Inspector of Police Marayoor detected the offence and he arrested the 2nd accused and seized utensils and also seized 55 litres of arrack contained in 3 Cans and accordingly Crime No.96/2003 was registered in the Marayoor Police station. After investigation, charge was laid before the Judicial First Class Magistrate Court, Thodupuzha, where C.P.No.25/2005 was instituted. As the first accused expired, charge against him abated. CRL.A. NO.1949/2007 -:2:- Subsequently, the case was committed to the Sessions Court where the case was taken on file as S.C.No.36/2006 and made over to the trial court for disposal. The accused pleaded not guilty to the charge framed and read over and explained to him. From the side of the prosecution, PWs 1 to 4 were examined and Exts.P1 to P7 were marked as documentary evidence. Material objects such as M.Os 1 to 4 were identified and marked. The accused denied the incriminating circumstances brought against him during the evidence of prosecution. Finally, the court found that the accused has committed the offence levelled against him. Accordingly, the appellant/A2 is sentenced to rigorous imprisonment for two years under section 55(b) and to pay a fine of Rs.1,00,000/-. The accused is also sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- under section 55(g) of the Abkari Act. In default of payment of fine, the accused is directed to undergo rigorous imprisonment for three more months each. No separate sentence is awarded under section 8 (2) of the Act, It is also ordered that the substantial sentence will run concurrently. It is the above conviction and sentence challenged in this appeal. 4. As the appellant is undergoing imprisonment in pursuance of the impugned judgment, Advocate, Sri Manju Antony is appointed as CRL.A. NO.1949/2007 -:3:- State Brief to prosecute the appeal for and on behalf of the appellant. Thus I have heard Adv. Sri Manju Antony appearing for the appellant, as well as Sri. Amjad Ali, the learned Public prosecutor. I have also perused the materials and evidence on record. 5. PW3 is the Sub Inspector of police, Marayoor Police Station who detected the offence. According to PW3, when he was engaged in the investigation of crime No. Cr.No.95/2003 of the Marayoor Police station on 3.8.2003, he reached Pallanadu at 6 p.m. and he saw accused Nos. 1 and 2 engaged in the distillation of arrack on the Thuruthu in the middle of Pampar river. On seeing the Police party, the accused attempted to escape from the spot. The appellant/2nd accused was intercepted. According to the PW3, there was a hearth above which a drum of 200 litres capacity containing wash was placed . There was a hole on one side of the drum to which a bucket with hose was inserted. A Steel pot was placed above the bucket. When PW3 reached the place of occurrence, the accused were engaged in the distillation of arrack. When the appellant was questioned, he admitted the fact that he was engaged in the distillation of illicit arrack. There was a 35 litres Can and two Cans of capacity of 10 litre each which contained arrack. PW3 took samples in two bottles each from the 3 Cans. PW3 destroyed two drums which contained wash. Seizure was CRL.A. NO.1949/2007 -:4:- effected and all the proceedings including the drawing of samples were meticulously recorded in Ext.P1 seizure mabhazar. Thus the accused was arrested at 6.p.m and on reaching the Police station, crime was registered as 96/2003. During the examination , PW3 identified M.O1 as the 35 litres Can which contained arrack. M.O2 series are two Cans of 10 litres capacity each. M.O.3 is the steel pot and M.O.4 series are the bucket, hose, and steel plate which is proved through PW3 and Ext.P1 mahazar was produced before the court on 31.8 2003. Ext.P1 is a contemporaneous document which contained the details of the procedure adopted by PW3 in the seizure of the contraband articles. PW3 when examined, he had deposed in terms of the prosecution allegation. There are certain minor discrepancies crept in the deposition of PW3 because he was examined on 19.3.2007 after the expiry of 3 ½ years from the date of detection of the crime which occurred on 30.8.2003. 6. Besides PW3, the prosecution has examined PWs 1 ands 2 who are independent witnesses and signatories to Ext.P1 mahazar. PW1 though admitted his signature in Ext.P1 mahazar and Ext.P2 arrest memo, he did not support the prosecution case. But he admitted that the accused was chased and caught by the Police. He had also admitted that the 2nd accused was arrested 300 metres away CRL.A. NO.1949/2007 -:5:- from the place of distillation and that the accused tried to escape on seeing the PW3 and party and they chased the 2nd accused and intercepted and arrested him. PW2 deposed that he did not sign Exts.P1 and P2. After considering the evidence of PWs 1 and 2 in the particular facts and circumstances involved in the case, the trial court found that they are attempting to help the accused. Going by the evidence on record, I am of the view that even though PWs 1 and 2 turned hostile, the evidence of PW3 which are free from doubt are sufficient to hold that the prosecution has established its case beyond doubt. Ext.P1 is the contemporaneous document which produced before the court without any delay. Ext.P1 mahazar, M.O1 and 2 series were produced before the court on 24.9.2003 as per Ext.P5 property list. The utensils for the distillation of the contraband articles which are marked as M.O.3 and 4 were produced before the court on 16.11.2003 as per Ext.P6 property list. The trial court believing PW3 found that the delay occurred in producing the samples and other materials will not go against the prosecution because the accused was produced before the Magistrate on 31.8.2003 itself. So, the finding of the court below that there is no possibility of any tampering of the material objects cannot be stated as unfounded. Ext.P7 is the chemical Analysis report which certified that the samples contained ethyl alcohol. The trial CRL.A. NO.1949/2007 -:6:- court on the basis of the said evidence and materials found that the accused is guilty of the charges levelled against him. The learned counsel for the appellant very much argued about the delay occurred in reaching the material objects before the court below. It is pointed out that as per Exts P5 and P6 , the material objects were reached much later. Going by the judgment of the trial court, the above points were elaborately considered by the court below. The court has found that the accused was produced before the court on the next day with remand report. Ext.P1 mahazar was also produced at the time of production of the accused before the court. It is to be noted that the offence was committed in the interior part of the forest area which is situated far away from the court. In the absence of any prejudice to the accused, the delay which is already explained, will not affect against the prosecution. 7. In the light of the above facts and circumstances , I find no reason to interfere with the finding arrived on by the court below and the order of conviction. Accordingly the conviction is confirmed. 8. Regarding the sentence, the learned counsel submitted that a lenient view may be taken. I have considered the above submission. Having regard to the facts and circumstances involved in the case, I am of the view that certain modifications can be effected with respect to the CRL.A. NO.1949/2007 -:7:- sentence. 9. In the result, the substantial sentence imposed against the accused under section 55(b) and (g) are reduced from two years to 1 ½ years. The default sentence is refixed as two months each. Set off is allowed under section 428 Cr.P.C. 10. From the records, it appears that from the date of arrest, the accused was under custody, i.e. from 30.8.2008. The impugned judgment was pronounced on 9.4.2007. If that be so, now the appellant has already undergone one year and 10 months. As the substantial sentence is reduced to one and a half year and the default sentence is refixed as two months under each count, and the set off is allowed under section 428 of Cr.P.C., the appellant need not be detained further. Therefore, there will be a direction to release the appellant/accused forthwith if he is not required in any other case. The appeal is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- CRL.A. NO.1949/2007 -:8:- V.K.MOHANAN, J. CRL.A.No.1949 OF 2007 Judgment Dated:20.1.2009