IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 CRL.A.No. 1855 of 2003() ------------------------------------- SC.203/2001 of ADDL. SESSIONS COURT (ADHOC), THRISSUR .................... APPELLANT(S): ACCUSED: ---------------------- AJAYAN, S/O. VELAYUDHAN, MODENPLAKKA HOUSE, CHEMBANKUNNU, VELLIKULANGARA, TRICHUR DIST. BY ADV. MR.A.C.DEVY RESPONDENT(S): COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/07/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1855 OF 2003 ------------------------------ Dated this the 3rd day of July, 2009 JUDGMENT This is an appeal preferred against the conviction and sentenced passed in S.C.No.203/2001 of the Third Additional Sessions Judge, Fast Track No.1, Trichur. The accused has been convicted under Sections 55(i) and 58 of the Abkari Act and sentenced to undergo R.I for one year each and 3 months each under both sections. The sentence is directed to run concurrently and set off has been allowed. It is against that decision, the accused has come up in appeal. 2. The points that arise for determination in the appeal are (1) whether the accused has committed the guilt under Sections 55(i) and 58 of the Abkari Act, (2) Is there anything to interfere with the finding of guilt and whether the punishment awarded is excessive. 3. Point No.1: It is the case of the prosecution that on 21.11.1999 while PW6 was on patrol duty, he got a reliable information that the accused was selling illicit arrack and therefore, proceeded to 2 CRL.A.NO.1855/03 the place and on seeing the police, the accused attempted to run away but he was apprehended and he was found to be in possession of a 10 liter can with a glass. He was restrained, sample was taken and by taste and smell, it was found to be illicit arrack. Thereafter sample was taken in the presence of the accused and the witnesses, sealed and accused w as arrested. Later he was produced before the court and the liquid was sent for chemical examination which revealed that it contained more than 35% by volume of ethyl alcohol. PW6 is the person who has detected the case. He had described the way in which he had proceeded, how the accused was apprehended, search, arrest and seizure effected. He had also spoken about the sampling. It has been done properly and the SHO's seal had been put on the bottle. In the cross examination, he would depose that it was having some colour. The cross examination is more pertaining to the distance and sight, but the witness has been able to answer it very properly and so, there is nothing to discredit his evidence so far as apprehension, seizure and arrest is concerned. 4. PW1 is a person who had accompanied PW6. He had 3 CRL.A.NO.1855/03 also deposed in the very same line and nothing is brought out in the cross examination to discredit his evidence. So, the evidence of Pws1 and 6 is consistent and on meticulous scrutiny of the evidence, it can be accepted as legal and trustworthy. It is true that the independent witnesses had turned hostile as usual for the reasons known to them. Regarding the acceptability of the evidence of the official witness,, the law is that it must be meticulously scrutinized and if it is found to be trustworthy, can be accepted. So far as sampling, sealing is concerned, the apprehension was about 6.15 p.m on 21.11.1999 and the sample with the remainder etc have been produced before the court on the very next 22.11.1999. Everything was intact and it was the sample which had been taken that had been sent for chemical analyst's report. The learned counsel for the appellant would contend before me from the evidence of PW6 that there was some colour for the liquid where as in the chemical analysis report it is reported as colourless liquid. It has to be remembered that the seizure was on 21.11.1999 and the sample was received on 1.12.1999 and if there is some dirt, it will get 4 CRL.A.NO.1855/03 settled within a span of 10 days. From the materials available here, I am satisfied that it was the contraband liquor that was taken from the custody of the accused that had been sealed and sent for chemical analysis and it is revealed that it contained the percentage of ethyl alcohol. So, this will not destroy the case of the prosecution. But, so far as the offence under Section 55(i) is concerned, the evidence is to the effect that there was a glass with liquor in it. But the glass was not taken with the liquor and it was only an empty glass. The mere possession of empty glass will not prove the sale and nobody had spoken about the factum of sale in the case as well. Therefore, the conviction and sentence under Section 55(i) has to be set aside and I do so. So far as Section 58 is concerned, it can be seen that illicit liquor was in possession without proper explanation and therefore, from the materials available it is found that the accused was found in possession of illicit arrack and the offence under Section 58 is attracted. Therefore, I confirm the conviction under Section 58. So far as the sentence is concerned, when questioned under Section 313 of the Cr.P.C the accused has stated that he has got aged 5 CRL.A.NO.1855/03 parents to be looked after besides his wife and two small kids. I am inclined to show some leniency considering this fact as well as the quantum involved. I feel that justice will be met by sentencing him to undergo S.I for three months under Section 58 of the Abkari Act and to pay a fine of Rs.One lakh, on default of which, he shall undergo one month's further imprisonment. 4. In the result, the criminal appeal is disposed of as follows: 1.The conviction under Section 55(i) is set aside. 2.The conviction and sentence under Section 58 is confirmed. The sentence is modified and the accused is sentenced to undergo S.I for three months and to pay a fine of Rs. One lakh on default of which, he has to undergo S.I for one month more under Section 58 of the Abkari Act. He shall be entitled to set off under Section 428 of the Cr.P.C. The lower court shall execute the sentence. M.N. KRISHNAN, JUDGE cl 6 CRL.A.NO.1855/03 7 CRL.A.NO.1855/03 8 CRL.A.NO.1855/03