IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 CRL.A.No. 1633 of 2003() ------------------------ SC.476/2000 OF ADDL.SESSIONS COURT (ADHOC)- I, KASARAGOD APPELLANT/ACCUSED: -------------------------------- K. LAKSHMANAN, S/O. CHOYICHI, KANAKKODE, DARGHAS, ADHUR, KASARAGOD DISTRICT. BY ADV. SRI.T.SETHUMADHAVAN SRI.KODOTH PUSHPARAJAN SRI.K.JAYESH MOHANKUMAR RESPONDENT/COMPLAINANT: -------------------------------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT. S. HYMA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/11/2011, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: P.S. GOPINATHAN, J. = = = = = = = = = = = CRL.APPEAL 1633 OF 2003 = = = = = = = = = = = = = DATED THIS, THE 15TH DAY OF NOVEMBER, 2011. J U D G M E N T The appellant was convicted by the Additional Sessions Judge (Ad- hoc- I) Kasaragod for offence under Section 55(a) of the Abkari Act and sentenced to rigorous imprisonment for three years and a fine of Rs. 1,00,000/- with a default sentence of rigorous imprisonment for six months. Assailing the legality, correctness and propriety of the above conviction and sentence, this appeal was preferred. 2. The allegation against the appellant is that on 11.3.1999 at about 9 a.m. while PW.2, the Excise Inspector, attached to Badiyadukka Excise Range moving on patrol duty along the Cadigudde-Kanakkodu road, the appellant was found coming across with a plastic bag in his hand. Seeing PW.2 and party, the appellant got puzzled and hid away the bag behind him. PW.2 got suspicious on the conduct of the appellant. Therefore, he approached the appellant and the contents in the bag was examined. It was noticed that the plastic bag contained 100 packets each containing 100 ml. liquid. One of the packets was opened and the contents therein was tested by smell and taste. It was satisfied to PW.2 that the liquid contained in the CRL.A. 1633/2003 2 packets was illicit arrack. Therefore, the appellant was apprehended and the contraband was seized for which Ext.P1 seizure mahazar was prepared wherein PW.1 is an attester. The contents in three packets were taken in a sample bottle for analysis and it was sealed then and there. Returning to the office, a case was registered for which Ext.P2 occurrence report was prepared. The material objects were forwarded to the local magistrate along with Ext.P3 forwarding note. The learned magistrate forwarded the sample for chemical examination and obtained Ext.P4 certificate wherein it is certified that the sample contained 44.84% by volume of ethyl alcohol. After completing the investigation, charge sheet was submitted before the learned magistrate. 3. On finding that the case was exclusively triable by a Court of Session, the case was committed to the Sessions Judge, who made over the case to the Assistant Sessions Court. Later, the case was withdrawn and made over to the Additional Sessions (Ad-hoc)I Court, Kasaragod. The appellant, when read over and explained the charge under Section 55(a) of the Abkari Act, pleaded not guilty. Therefore, the appellant was sent for trial. On the side of the prosecution, PWs 1 and 2 were examined and Exts.P1 to P4 were marked. The appellant took a defence of total denial. However, no defence evidence was let in. The learned Additional Sessions CRL.A. 1633/2003 3 Judge, on appraisal of the evidence, arrived at a conclusion of guilt consequent to which the appellant was convicted and sentenced as above. 4. I have heard Advocate Sri. Kodoth Pushparajan, learned counsel appearing for the appellant and Smt. S. Hyma, the learned Government Pleader and perused the judgment as well as the evidence on record. 5. PW.1, though admitted his signature in Ext.P1, did not support the prosecution case regarding the arrest and seizure of the appellant. Therefore the only evidence available is that of PW.2, the Excise Inspector supported by Ext.P1. Since there is no other supporting evidence, I had a very critical scrutiny of the evidence of PW.2. Though PW.2 was subjected to a searching cross examination, no material was disclosed to disbelieve PW.2 who would depose about the seizure of the contraband. Nothing revealed to find that PW.2 has got any axe to grind against the appellant so as to implicate him in a case for severe offence. What was suggested to PW.2 in cross examination is that CW.3, another independent witness who was at that time in judicial custody in connection with some abkari case had produced some material objects basing upon which the appellant was booked. There is no suggestion to PW.2 that PW.2 is a puppet at the hands of CW.3 or that PW.2 cooked up the case against the appellant with some ulterior motive. There is nothing revealed out to show that PW.2 is a man CRL.A. 1633/2003 4 who lacks integrity or honesty or that PW.2 had been discharging duties with any ulterior motive. Therefore, it has to be presumed that PW.2 had been discharging duties on good faith. His evidence is corroborated by Ext.P1. Credibility of PW.1 could not be shaken in cross examination. This being the evidence on record, I find little reason to interfere with the conviction under challenge. 6. The learned counsel for the appellant submitted that the appellant was not given opportunity to adduce defence evidence. Therefore, the learned counsel sought for remand of the case. Going by the order sheet it is seen that on 18.9.2003 evidence was closed and the case was posted to 22.9.2003 for recording statement under Section 313 Cr.P.C. On that day, the appellant was questioned under Section 313 Cr.P.C. and the case was posted for defence evidence to 23.9.2003. On that day, it is specifically recorded - 'no defence evidence' and both sides were heard and the case was posted for judgment to 27.9.2003 on which day, the judgment was pronounced. Therefore, I find no merit in the submission that the appellant was denied opportunity to adduce defence evidence warranting interference with the judgment. The appellant, though given opportunity to adduce defence evidence had not availed it. The argument now advanced is devoid of merit. I find that the conviction under challenge is unassailable. CRL.A. 1633/2003 5 7. Regarding the sentence, it is submitted that the appellant has no bad antecedent. There is nothing on record to show that the appellant was subsequently involved in any identical crime. It appears that he is now in his fiftees. Taking into account all these circumstances, I find that the substantive sentence awarded by the trial court is a little bit harsh and that substantive sentence of rigorous imprisonment for six months would meet the ends of justice. In the result, the appeal is allowed in part. While confirming the conviction, the substantive sentence is reduced to rigorous imprisonment for six months. The fine imposed with default sentence is sustained. The trial court shall see the execution of sentence and report compliance. Under-trial imprisonment, if any, shall be set off. P.S. GOPINATHAN, (JUDGE) knc/-