IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN THURSDAY, THE 15TH DAY OF DECEMBER 2011/ 24TH AGRAHAYANA 1933 CRA.No. 331 of 2004 (A) ----------------------- SC.203/2001 of ADDL.SESSIONS COURT (ADHOC)-II, KOZHIKODE APPELLANT/ACCUSED: -------------------- GOPALAKRISHNAN, S/O.GOPALAN, 36 YEARS PALLATHUSSERI VEEDU, KOLLADA, KAMBULLUR CHITTANIKKAL VILLAGE. BY ADVS.SRI.A.V.VAMANAKUMAR SRI.V.B.HARI NARAYANAN SRI.M.A.SAJI ROSHAN RESPONDENT/COMPLAINANT: -------------------------- 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT. S. HYMA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-12-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.S. GOPINATHAN, J. = = = = = = = = = = = CRL. APPEAL 331 OF 2004 = = = = = = = = = = = = = DATED THIS, THE 15TH DAY OF DECEMBER, 2011. J U D G M E N T The Additional Sessions Judge (Adhoc II), Kasaragod, in S.C. 203/2001 convicted the appellant for offence under Section 55(a) of the Abkari Act and sentenced to rigorous imprisonment for one year and a fine of Rs. 1,00,000/- with a default sentence of rigorous imprisonment for two months. Assailing the above conviction and sentence, this appeal is preferred. 2. The prosecution case is that at 5.45 p.m. on 24.6.2000, the appellant while walking along the walkway to his house with seven litres of illicit arrack carried in M.O1 jerry can was caught red-handed by PW.1, the Sub Inspector of Police, Chittarikkal Police Station. PW.1 arrested the appellant for which Ext.P1 arrest memo was prepared and the contraband was seized for which Ext.P2 seizure mahazar was prepared wherein PWs 3 and 4 are attestors. From out of the seven litres of arrack contained in M.O.1, 200 ml. each was taken in two sample bottles and sent for chemical examination. After examination, the Chemical Examiner, by Ext.P7 report, certified that the samples contained 39.19 and 39.07 percent by volume of CRL. A. 331/2004 2 ethyl alcohol. PW.1 himself conducted the investigation and submitted the charge sheet before the Judicial magistrate of the First Class- II, Hosdurg alleging offence under Section 55(a) of the Abkari Act. On finding that the offence alleged is exclusively triable by a Court of Session the case was committed to the Court of Session, Kasaragod from where it was made over to the Additional Sessions Judge, Kasargod. Responding to the process issued from the Additional Sessions Court , Kasaragod the appellant entered appearance. After hearing the prosecution and the appellant, the learned Additional Sessions Judge framed charge for the above said offence. When read over and explained, the appellant pleaded not guilty. Therefore, he was sent for trial. On the side of the prosecution, PWs 1 to 4 were examined. Exts.P1 to P8 and M.O.1 were marked. When questioned under Section 313 of the Code of Criminal Procedure, the appellant took a defence of total denial. No defence evidence was let in. On appraisal of the evidence, the Additional Sessions Judge arrived at a conclusion of guilt consequent to which the appellant was convicted and sentenced as above. 3. I have heard Advocate Sri. Harinarayanan, learned counsel for the appellant and Smt. S. Hyma, learned Public prosecutor. Perused the judgment and evidence on record. CRL. A. 331/2004 3 4. PW.1 is the charge officer who detected the crime. PW.2 is the Village Officer who prepared Ext.P8 scene plan. PWs 3 ands 4 are independent witnesses who are attestors to Ext.P2 seizure mahazar. They didn't support the prosecution. Therefore, the only evidence available is that of PW.1. Since the independent witnesses did not support the prosecution case, I had a critical scrutiny of the evidence of PW.1. PW.1 would depose that on getting information that the appellant was dealing with illicit arrack in his house, PW.1 along with the police party rushed to the spot and when they reached at the walkway near the house of the appellant, the appellant was found going with M.O.1 jerry can in his hand. Seeing PW.1 and party, the appellant attempted to run away. But he was intercepted and interrogated. When the contents in M.O.1 was tested by smell and taste, it was convinced that M.O.1 contained about seven litres of illicit arrack. Therefore, the appellant was arrested and M.O.1 with the contents was seized. In two bottles 200 ml. were taken as samples and sent for chemical analysis and obtained Ext.P7 report from the Chemical Examiner certifying that the samples contained 39.19% and 39.07% by volume of ethyl alcohol. The appellant has no case that the liquid contained in M.O.1 was procured by him through any lawful means or that it was anything other than arrack as certified in Ext.P7. Therefore, it can be CRL. A. 331/2004 4 conclusively held that the liquid seized is nothing but arrack. PW.1 was subjected to a searching cross examination. There is no case that PW.1 was anyway ill-motivated so as to cook up a case against the appellant. The only defect that I noticed in his evidence is that the sample was produced before court on 24.7.2000 ie. ten days after the seizure. But PW.1 is consistent that till it was produced before the court, material objects including samples were in his safe custody. There is no suggestion to PW.1 that either M.O.1 or the samples were anyway tampered with. Therefore, the delay in producing the sample before the court would no way affect the prosecution case. The Additional Sessions Judge who had occasion to watch the demanour of Pw.1 had believed him. No material was disclosed to come to a conclusion that the Additional Sessions Judge, had any way erred in appreciating the evidence. In the above circumstances, I find no reason to interfere with the conviction under challenge. 5. The appellant is stated to be a coolie aged 33 years as on 7.11.2003. Taking into account of the status of the appellant and the quantity involved, I find that a substantive sentence of rigorous imprisonment for seven months with the fine imposed by the trial court would meet the ends of justice. CRL. A. 331/2004 5 In the result, the appeal is allowed in part. While confirming the conviction, the substantive sentence is reduced to rigorous imprisonment for seven months. The fine imposed with default sentence is sustained. The trial Court shall see the execution of the sentence and report compliance. P.S. GOPINATHAN, (JUDGE) knc/-