IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 CRL.A.No. 898 of 2003() ---------------------------- (AGAINST JUDGMENT OF THE ADDITIONAL SESSIONS JUDGE (ADHOC) II KASARGOD DATED 26.5.2003 IN SC.357/2000 ) .................... APPELLANT(S): ACCUSED: ------------------------------ MANIKKAN, S/O. CHIRUMBAN, CHEMMANCHERI HARIJAN COLONY, BALAL VILLAGE. BY ADVS. SRI.M.THAMBAN SMT.T.SUDHAMANI RESPONDENT(S): COMPLAINANT AND STATE: ------------------------------------- 1. THE STATION HOUSE OFFICER, VELLARIKUNDU POLICE STATION. 2. THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. THOMAS JOHN AMBOOKAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: LN M.N.KRISHNAN, J. ------------------------- CRL.A.No. 898 OF 2003 ------------------------------------- Dated this the 25th day of June, 2009. J U D G M E N T This is an appeal preferred against conviction and sentence in S.C. No. 357/2000 of the Additional Sessions Judge (Adhoc) II, Kasargod. The accused was found guilty u/s 55(g) of the Abkari Act and directed to undergo Rigorous imprisonment for 6 months and pay a fine of Rs. 1,00,000/- and in default to undergo further imprisonment for two months. It is against that decision the accused has come up in appeal. 2. The points that arise for determination are : 1. Whether there are sufficient materials to hold that the accused has committed offence under section 55 (g) of the Abkari Act ? 2. In case of guilt whether the quantum of punishment is to be interfere with ? 3. Points 1 and 2:- It is the case of the CRA.No. 898/2003 2 prosecution that on 25.8.1998 at about 6.30.p.m. The accused was found in possession of wash used for distillation of arrack at Chemmancheri Harijan Colony and thereby has committed the offence u/s. 55(g) of the Abkari Act. In the trial court PWs 1 to 5 were examined Exts. P1 to P8 and Mos 1 and 2 were marked. PW1 is the Assistant Sub Inspector of Police who had accompanied PW5 Sub Inspector at the time of detection of the offence. PW1 would depose that when they reached the Chemmanchery Town they got reliable information that the accused was distilling illicit arrack and therefore at about 6.30.p.m., they proceeded and reached his house. He was seen hiding behind a coral tree with a mud pot in both his hands. He was intercepted and examined . The liquid in the pot was found to be wash used for the manufacture of alhocol. 500ml samples were taken in two bottles of 750ml capacity. It was sampled and sealed. He had identified the properties as Mos 1 and 2. He had been cross examined at length and he would depose that on seeing the police the accused did not destroy the mud pot or wash. He CRA.No. 898/2003 3 would say that the house of the accused is facing towards east. He denied the suggestion of a false case. Pws 2 and 3 are the seizure mahazar witness and scene Mahazar witness.. PW2 had turned partly hostile to the prosecution. But he admits that he saw the accused in the company of the police. PW1 would say that he had signed as witness to the scene Mahazar. PW3 is the Village Officer and PW4 is the Junior Superintendent of the Panchayath and PW5 is the investigating officer who had detected the offence. He has also deposed in the very same line as PW1 had stated he had also spoken about the presence of the accused in the courtyard of the house with mud pot. He had also spoken about the sampling and sealing and that he had sent it to the court custody. In the cross-examination he would state that no search memorandum had been prepared and that house is facing south. It is also brought out that in the sample in MO2 only his signature is seen and not of that of the accused. The learned counsel for the accused would contend before me that no prudent person on seeing the police would continue to CRA.No. 898/2003 4 hold a pot containing wash without throwing it away or running away. Human Conduct changes persons to persons. What is the purpose of PW1 and PW5 who do not have axe to grind against the accused to foist a false case. Both of them had clearly spoken about the search of seizure.Minoe contradictions like the facing of the house are only to be ignored. One has to remember the police officials and Excise Officials are examined in the court of law after a period of 4-5 years and if the court starts to acquit the accused on inconsequential and minor discrepency it may lead to injustice. I am also conscious that the evidence of the official witnesses are to be considered meticulosily to find out the acceptability. On considering the evidence PWs 1 and 5 in toto, do not find any valid reason or circumstance to discard them. So far as the production of the material objects are concerned the offence was detected on 25.8.1998 and sample reached the court on 29.8.1998. There is no undue delay. Chemical Examination report show that the seal and other things were intact and so there has been proper compliance CRA.No. 898/2003 5 of procedural formalities. So in that aspect also one has to find in favour of the prosecution. Therefore, from this dicussion I do not find any ground to interfere with the conviction rendered under 55(g) of the Abkari Act. Now turning to the question of sentence. The quantity involved is about 10 litres of wash. The punishment imposed is 6 months and default sentence of 2 months on non payment of fine. He had been in Jail during the pre-trial stage and after conviction as well. Taking into consideration the submissions made by the learned counsel for the accused I am inclined to reduce the sentence as 3 months for the offence u/s. 55(g) and default sentence of one month in case of failure to pay fine. In the result, the criminal appeal is disposed of as follows: 1. The finding of guilt u/s. 55(g) of the Abkari Act stands confirmed. 2. The sentence is modified and the accused is sentenced to undergo simple imprisonment CRA.No. 898/2003 6 for a period of 3 months and to pay a fine of Rs. 1,00,000/- and in default of which he has to undergo further simple imprisonment of one month. The accused is entitled to set of as contemplated under section 428 of the Cr.P.C.The Lower Court shall execute the stands. M.N.KRISHNAN,JUDGE LN. CRA.No. 898/2003 7 M.N.KRISHNAN,J CRA. NO. 898/2003 J U D G M E N T 25th June, 2009