IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 CRL.A.No. 26 of 2003(C) ----------------------- SC.232/2001 of ADDITIONAL SESSIONS JUDGE (ADHOC-II) ERNAKULAM .................... APPELLANT : ACCUSED --------------------- VALLY, W/O. KUMARAN, CHEMMAYATH VEEDU, UDAYAMPEROOR, MANAKUNNAM VILLAGE, ERNAKULAM. BY ADV. SRI.P.T.JOSE RESPONDENT: COMPLAINANT -------------------------- THE STATE OF KERALA, REP.BY EXCISE INSPECTOR, THRIPUNITHURA, CRIME NO.4/1998 OF EXCISE INSPECTOR, THRIPUNITHURA RANGE, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. ........................................... CRL.A.NO.26 OF 2003 ............................................. Dated this the 18th day of August, 2009 J U D G M E N T This is an appeal preferred against the conviction and sentence passed by the Additional Sessions Judge, (Adhoc -II), Ernakulam in S.C.No.232/2001. The accused was charge sheeted for an offence under Section 55 (a) of the Abkari Act and was found guilty under Section 58 of the Abkari Act and convicted there under. She was sentenced to undergo S.I for a period of 6 months and to pay a fine of Rs. One lakh and in default to undergo S.I for one year. It is against that decision, the appeal has been filed. 2. The points that arise for determination in the appeal are whether materials are sufficient to hold the accused guilty under Section 58 of the Abkari Act (2) in case of guilt is the sentence excessive. 3.Heard the learned counsel for the appellant as well as the Prosecutor. It is the case of the prosecution that on 18.6.1998 at about 11.50 a.m the accused was found in possession of 5 litres of illicit arrack in her house bearing : 2 : CRL.A.NO.26 OF 2003 No.III/378 of Udayamperoor Panchayath. The Excise Inspector conducted a search and later it was investigated also. 4. PW1 is the person who had detected the offence. He had deposed before the court that on getting reliable information that illicit arrack was sold in the house of the accused, he with the party proceeded and on search, found from the kitchen of the residential house of the accused a 5 liter Can containing illicit arrack. It was seized and in the presence of the witnesses, sample was taken in a 375 ml bottle. Subsequently forwarding note was prepared and sent the sample for chemical analysis. 5. PWs 2 to 5 are the other official witnesses who are accompanied PW1. They had also given evidence in line with Pw1. PWs 6 and 7 are two independent witnesses. Unlike in other cases they have not turned hostile to the prosecution as such. PW6 is a person aged 70 years. He is a neighbor to the accused. He had testified that he seen the officials in the residential house of the accused and therefore he had gone to the house of the accused and he also admitted : 3 : CRL.A.NO.26 OF 2003 that he had signed Ext.P1 mahazer from the courtyard of the residential house. 6. PW7 is another neighbour of the accused who had also spoken to the effect that he had witnessed the seizure mahazer and had also identified MO. He also testified that the seizure was made by the excise officials under the cover of Ext.P1 mahazer. Therefore, the evidence convincingly establishes that 5 litre of arrack was seized from the kitchen of the accused and therefore he has committed the guilt as found by the court below under Section 58 of the Act. Therefore the conviction is sustained. 7. So far as the sentence is concerned, the court below has only sentenced her to undergo 6 months imprisonment and to pay a fine of Rs. One lakh. But the court has imposed a default sentence of one year which appears to be on the higher side. It has to be reduced and I reduce it to six months. 8. Therefore the appeal is disposed of as follows: 1. The finding of guilt under Section 58 of the Abkari Act is sustained. : 4 : CRL.A.NO.26 OF 2003 2. The sentence is modified and the accused is sentenced to undergo S.I for six months and to pay a fine of Rs. One lakh and in default to undergo further imprisonment for 6 months. 3. The accused is entitled to set off as contemplated under Section 428 of the Cr.P.C. 4. If the accused has already suffered sentence, then nothing remains to be executed. Otherwise, the lower court shall execute the sentence. M.N.KRISHNAN, JUDGE cl : 5 : CRL.A.NO.26 OF 2003 M.N.KRISHNAN, J. . ........................................ CRL.A.NO.26 OF 2003 ........................................ 18th day of August, 2009 J U D G M E N T