IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 CRL.A.No. 853 of 2008(B) ----------------------------------- SC.739/2006 of ADDL.SESSIONS COURT(ABKARI CASES), KOTTARAKARA ............................................................................... APPELLANT(S): --------------------- ACHANKUNJU, C.NO.1622 CENTRAL PRISON, TRIVANDRUM. BY ADV. SRI.G.G.MANOJ[SB] RESPONDENT(S): ------------------------ STATE OF KERALA REPRESENTED BY A PUBLIC PROSECUTOR. BY ADV.SRI.C.M.NAZAR, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.853 OF 2008 -------------------------- Dated this the 13th day of July, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the conviction and sentence passed in Sessions Case No.739/06 of the Addl. Sessions Judge, Abkari cases, Kottarakkara. The accused was charge sheeted for an offence u/s.8(1) and (2) of Abkari Act and was sentenced to undergo simple imprisonment for a period of 3 years and to pay a fine of Rs.1 lakh and in default to undergo 3 months further imprisonment. He was also entitled to set off. It is against that decision the accused preferred an appeal from the jail. Sri.G.G.Manoj was appointed as the State Brief to argue the case of the appellant before this court. The points that arise for determination are, 1.Whether the materials are sufficient to hold the accused guilty u/s.8 of the Abkari Act ? 2.In case of guilt whether the sentence awarded is excessive ? 2 CRL.A.No.853 OF 2008 2. Points 1 and 2 :- Heard the counsel and the prosecutor. It is the case of the prosecution that on 3.7.02 at about 5.30 P.M., the accused was found transiting 4 ltrs. of illicit arrack in a 5 ltr. can through the ridge on the southern side of the pump house of Kerala Water Authority. He was apprehended, arrested and on search and seizure it was found that the can contained illicit arrack, by smell and taste and so in a 375 ml. bottle, 300 ml. sample was taken and thereafter the accused was arrested. The material objects were produced before the court on 4.7.02 and on chemical examination it was revealed that the sample contained 24.55% by volume of ethyl alcohol. The evidence in this matter, that has been adduced in support of the prosecution is that of PWs.1, 2, 4 and 5. PW1 is the Excise Inspector who had done the patrol duty. He had deposed about the factum of seeing the accused with a can, about the search and seizure and later taking of the sample and further proceedings. Though he had been cross examined at length, nothing has been brought out to discredit his 3 CRL.A.No.853 OF 2008 evidence. PW2 is also a person who had accompanied PW1. He had also clearly spoken about the sighting of the accused, apprehension, search, seizure, sampling and sealing and nothing has been brought out in cross examination to discredit him. Pws.4 and 5 had spoken about the further investigation and laying of the charge. Of course, the independent witnesses had not totally supported the prosecution. But it is a well settled position that, when the official witnesses tender evidence and it is found that they are reliable, conviction can be had on the basis of the same. So far as the compliance of the procedural formalities are concerned, here the search and seizure had been done properly, sampling has been done in the presence of the accused by taking the liquid from his possession, which had been produced before the court on the very next day, and forwarding note has been filed and chemical analysis report revealed that it contained 24.55% by volume of ethyl alcohol. The chemical analysis report also says that, the seal of the bottle was intact and found tallied with the sample 4 CRL.A.No.853 OF 2008 seal provided. Therefore, the evidence tendered in this case proves that the accused was in possession of the illicit arrack and that it contained percentage of ethyl alcohol. Therefore, the conviction u/s.8(1) and (2) of Abkari Act does not call for any interference. Now turning to the sentence. The total liquor was only found in a 5 ltr. can of 4 ltrs. The court below has convicted him to undergo imprisonment for a period of 3 years and to pay a fine of Rs.1 lakh and in default to undergo further simple imprisonment for 3 months. It is true that he had been involved in other cases as well. But taking into consideration the quantity involved and persuasive argument by the learned counsel, regarding the difficulty which he had been suffering in such circumstances, I am inclined to sentence him to undergo 1 year imprisonment and also to retain a fine of Rs.1 lakh with default sentence of 3 months. In the result the appeal is disposed of as follows :- 1.The conviction u/s.8(1) and (2) is upheld. 2.The sentence is modified and the accused is 5 CRL.A.No.853 OF 2008 sentenced to undergo simple imprisonment for a period of 1 year and to pay a fine of Rs.1 lakh and in default to undergo imprisonment for 3 months. He is entitled to set off as contemplated u/s.428 of Cr.P.C. Appeal disposed of accordingly. M.N.KRISHNAN, JUDGE ami.