IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 CRL.A.No. 246 of 2003() ----------------------- SC.233/2000 of ADDL. SESSIONS JUDGE, FAST TRACK COURT NO-I, PALAKKAD ....................................................................... APPELLANT(S): ACCUSED: -------------------------------------- SHAJI, S/O. YASHODHARAN, SHAJI BHAVAN, SOORANAD VILLAGE, SHASTHAMKOTTA, KOLLAM DISTRICT. BY ADV. SRI.A.MOHAMMED RESPONDENT(S): COMPLAINANT: ------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.THOMAS JOHN AMBOOKEN, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.246 OF 2003 -------------------------- Dated this the 24th day of June, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the conviction and sentence passed by the Addl.Sessions Judge Fast Track Court – I, Palakkad in S.C.233/2000. The accused was found guilty u/s.55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of 7 years and to pay a fine of Rs.1 lakh and in default of payment for a simple imprisonment of another 1 year. It is against that decision the accused has come up in appeal. 2. Perused the records and heard the learned Prosecutor. It is the case of the prosecution that on 28.10.1998 at about 11.55 A.M., the accused possessed and transported 8860 ltrs. of spirit unauthorizedly in a lorry bearing Regn.No.KRF 4390 at Meenakshipuram Excise Check Post and it was detected under the leadership of Preventive Officer. The Trial Court found him guilty on the evidence of PWs1 to 6 and Exts.P1 to P5. M.O.1 CRL.A.No.246 OF 2003 2 to M.O.3 series were also marked. The points that arise for determination are, 1. Whether the court below was right in holding that the accused has committed the offence u/s.55(a) of the Abkari Act ? 2. Is there anything to interfere with the decision rendered by the court below ? 3. Point Nos.1 and 2 :- PW1 is an independent witness, examined in this case. He had identified the accused and he had deposed before the court that the accused was found sitting in the driver seat of the lorry and the Excise officials had seized, rectified spirit from the lorry and he had identified the material objects shown to him. In the cross examination he would admit that, he had not seen any document to prove that the accused was the driver of the vehicle. But he submits that he had seen the accused. PW2 is the Preventive Officer who was on the duty on the relevant date. He had deposed before the court that the accused had taken token from the Sales Tax CRL.A.No.246 OF 2003 3 Check post and he identifies the accused. Thereafter he along with the Sales Tax officials went near the lorry and found that there were 41crates of old fish and further 173 plastic cans of 50 ltr. capacity and 6 cans of 35 ltr. capacity filled with spirit. It was smelt and tasted and approximately there was 8860 ltrs. of spirit. It is also deposed by him that, samples were taken from two black cans and one white can in 375 ml. capacity bottles and they were sealed and labelled and also took the signature of the accused. He had identified the material objects as well. He had been cross examined at length and I do not find any materials brought out to discredit his evidence. Excepting the fact that he had not taken any documents to establish that the accused was the driver of the vehicle at that time. He had clearly deposed the manner in which they have proceeded and conducted the search and seizure. PW3 is the Sales Tax official, who had issued the token to the accused and who had accompanied PW2 to the lorry from where the spirit containing 173 black cans and 6 white cans had been seized. He had CRL.A.No.246 OF 2003 4 also identified those cans. It is also deposed by him that he had issued the token and the vehicle number would be registered in the register maintained therein. According to him, the accused came to him as a driver to get the token. He had identified the accused from the box as well. PW4 is the Excise Range Inspector and he had visited the plot at 4 P.M. and thereafter PW2 had entrusted, the material objects as well as the accused and also the samples taken. He had also spoken about the recovery of Rs.2,300/- from the lorry and the production of the material objects before the court. Nothing has been brought out in his cross examination to hold that he is uttering false statement. PW5 an independent witness, has turned hostile to the prosecution. PW6 had laid the final charge sheet and deposed in that line. So the evidence of Pws.1, 2 and 3 without any blemish indicate that, the accused was found as the driver of the lorry and they had conducted search and had found that there were rectified spirit in 173 black cans and 6 white cans and samples were taken from 2 CRL.A.No.246 OF 2003 5 black cans and one white can and it was sent for chemical examination which revealed that it contain 94.31%, 94.47% and 94.73% of ethyl alcohol and they were found to be rectified spirit free from adulterants. The chemical analyst's report also shows that the seals in the packets were intact, it was found tallied with the samples given. 4. The learned Sessions Judge had found that, since the accused was found in possession of the rectified spirit, the mere non production of the GVR can not be fatal to the case of the prosecution. He also found that the vehicle was found parked within the State of Kerala and so the technical argument that, it was not within the State, also is not of any help. The learned Sessions Judge had analysed the matter in the proper perspective and had arrived at a decision that, 8860 ltrs. of rectified spirit were found in the lorry which was found to be in possession of the accused and therefore he is guilty u/s.55(a) of the Abkari Act. 5. So far as the sentence is concerned, considering the CRL.A.No.246 OF 2003 6 huge quantity of rectified spirit and the interstate trafficking, the punishment is only proper and it does not require any leniency. Therefore from these discussions, I confirm the finding of guilt as well as the sentence passed by the court below. The criminal appeal lacks merits and it is dismissed and the lower court is directed to execute the sentence. M.N.KRISHNAN, JUDGE ami.