IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 19TH FEBRUARY 2007 / 30TH MAGHA 1928 CRL.A.No. 1417 of 2006(A) ------------------------- SC.1460/2004 of ADDL. SESSIONS COURT (ADHOC), KOLLAM CP.161/2004 of JUDL.MAGISTRATE OF FIRST CLASS - I SASTHAMCOTTA .................... APPELLANT: ----------- RAVEENDRAN, CONVICT NO. 723, CENTRAL PRISON, THIRUVANANTHAPURAM BY ADV. BABU P.C (STATE BRIEF) RESPONDENT: ------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR BY PUBLIC PROSECUTOR K.S. SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/02/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl. Appeal No. 1417 of 2006 * * * * * * * * * * * * * * * * * * Dated, this the 19th day of February 2007 JUDGMENT In this appeal preferred from the Central Prison, Thiruvananthapuram, the appellant who was the sole accused in Sessions Case No. 1460/06 on the file of the Addl. Sessions Court (Adhoc - I), Kollam challenges the conviction entered and the sentence passed against him for an offence punishable under Sec. 8 (2) of the Abkari Act. 2. The case of the prosecution is that on 28-8-2003 at 7.30 p.m. on the road leading from Kurisadimukku to Ramankunnu road the accused was found in possession of 1 litre of illicit arrack in a white plastic bottle and that the accused has thereby committed an offence punishable under Sec. 55 (a) of the Abkari Act. 3. On the accused pleading not guilty to the charge framed against him by the court below for an offence punishable under Sec. 8 (2) of the Abkari Act, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 5 witnesses as P.W.s 1 to 5 and got marked 6 documents as Exts. P1 to P6 and 1 material object as Mo. 1. 4. After the close of the prosecution evidence, the accused was questioned under Sec. 313 (1) (b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his Crl. Appeal No. 1417 of 2006 -:2:- innocence. 5. Since the learned Addl. Sessions Judge, did not consider this a fit case for recording an order of acquittal under Sec. 232 Cr.P.C. the accused was, therefore, called upon to enter on his defence and to adduce any evidence which he might have in support there of. He did not adduce any defence evidence. 6. The learned Addl. Sessions Judge, after trial, as per judgment dated 6-5-2006, found the appellant guilty of the offence punishable under Sec. 8(2) of the Abkari Act and sentenced him to undergo rigorous imprisonment for 3 years and to pay fine of Rs. 1,00,000/- and on default to pay the fine, to suffer simple imprisonment for one year. It is the said judgment which is assailed in this appeal. 7. I heard Advocate Sri. P.C. Babu, the learned counsel who defended the appellant on State Brief and Advocate Sri. K. S. Sivakumar, the learned Public Prosecutor who defended the State. 8. The only point which arises for consideration is as to whether the conviction entered and the sentence passed against the appellant are sustainable or not ? THE POINT:- 9. P.W.1 is the Excise Preventive Officer, Kollam who detected the offence. P.W.2 is the Excise Guard who accompanied P.W.1. P.W.s 3 and 5 are the independent witnesses to the arrest, search and seizure and who are also attestors to Ext.P1 mahazar prepared by P.w.1. P.w.4 is the Excise Inspector, Kollam Excise Range who registered Ext.P3 Crl. Appeal No. 1417 of 2006 -:3:- occurrence report. After the conclusion of the investigation, it was P.W.4 who laid the charge. 10. Assailing the conviction entered and the sentence passed against the appellant the learned counsel for the appellant made the following submissions before me:- P.Ws 3 and 5 who are independent witnesses to the search and seizure have turned hostile to the prosecution. Hence the evidence of P.Ws 1 and 2 cannot be believed to hold that the accused was found in possession of the contraband arrack. Even without a request or forwarding note from the investigating officer, the Magistrate was not justified in forwarding the sample bottle to the chemical examiner. There is also no record to evidence the despatch of sample to the chemical examiner. 11. I am afraid that I cannot agree with the above submissions. It is true that P.Ws 3 and 5 who were the independent witnesses examined by the prosecution in support of the arrest, search and seizure turned unfriendly to the prosecution. Courts are not unfamiliar with such witnesses. In the face of the credible testimonies of P.Ws 1 and 2 in support of the arrest of the accused and the search and seizure of MO1 bottle from him, the disloyalty shown by P.Ws 3 and 5 need not deter the court from accepting the case of the prosecution in this regard. See in this connection Sivaraman v. State of Kerala - 1981 KLT SN 9. Ext.P1 is the contemporaneous mahazar prepared by P.W.1 from the spot itself. The evidence of P.Ws 1 and 2 coupled with the recitals in Crl. Appeal No. 1417 of 2006 -:4:- Ext.P1 mahazar would go to show that while P.W.1 was proceeding in his jeep on patrol duty in the company of Excise Officials including P.W.2, they came across the accused walking along the road carrying MO1 bottle. On seeing the excise party the accused was found in a perplexed mood, by P.W.1. On getting suspicious, P.W.1 questioned him about the bottle carried by him and the contents of the same. It was soon realised that the contents of the bottle was illicit arrack which P.W.1 could identify through smell and taste. Thereupon P.W.1 drew a sample containing 200 ml. Thereafter P.W.1 packed and sealed both the sample bottle as well as the balance contraband liquor. Ext.P6 thondi list reveals that the properties were produced before the J.F.C.M.- I, Kollam on the very next day. The testimony of P.W.4 shows that until production before court the properties were in his personal custody. 12. It is true that the investigating agency did not care to submit any requisition or forwarding note requesting the despatch of the sample bottle to the chemical examiner. But then the sample bottle was produced evidently for despatching the same to the chemical examiner for analysis and report.. The provisions of the Kerala Chemico Legal Examination Rules, 1959 also enable the Magistrate to forward the sample to the chemical examiner. Ext..P5 is the certificate of chemical analysis which shows that the sample bottle was received in a tamper- proof condition with the seal intact along with the letter dated 1-9-2003 from the J.F.C..M.-I, Kollam with reference to T403/2003 which is the Crl. Appeal No. 1417 of 2006 -:5:- number assigned to the sample bottle while it was received in Court under Ext.P6 property list. The description of the sample was that it was involved in crime No. 66/2003 of Kollam Excise Range which is the number assigned by P.W.4 while registering the crime. Going by Ext.P5 certificate of analysis the sample was found to contain 29.22 percent by volume of Ethyl Alcohol. There was thus credible evidence to show that the liquid contained in the bottle seized from the possession of the accused contained illicit arrack the possession and transport of which have been prohibited under Sec. 8(1) of the Abkari Act with effect from 3-6-1997. If so, the accused was clearly committing contravention of Sec. 8(1) of the Act and the said contravention is punishable under Sec. 8(2) of the Said Act. The conviction was, therefore, rightly recorded against the appellant/accused. 13. What now survives for consideration is the legality and extent of the sentence imposed on the appellant. The appellant is a collie who was aged 52 on the date of occurrence. The quantity seized from his possession is also only one litre. Having regard to the facts and circumstances of the case, I do not think that the sentence of rigorous imprisonment for three years imposed on the appellant is commensurate with the gravity of the offence. I am of the view that rigorous imprisonment for a period of two years would suffice. Accordingly, the sentence imposed by the court below is modified to the effect that the appellant shall undergo rigorous imprisonment for a period of two years for the above conviction. The fine portion of the Crl. Appeal No. 1417 of 2006 -:6:- sentence and the default sentence as imposed by the court below are not interfered with in this appeal. 14. In the result, this appeal is allowed in part confirming the conviction entered but modifying the sentence as above. The appellant shall be released from prison as soon as he undergoes the sentence as modified herein above unless his continued detention is warranted in connection with any other case. V. RAMKUMAR, (JUDGE) ani. Crl. Appeal No. 1417 of 2006 -:7:- V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl. Appeal No. 1417 of 2006 * * * * * * * * * * * * * * * * * * Dated, this the 19th February 2007 JUDGMENT