IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN SATURDAY, THE 19TH NOVEMBER 2011 / 28TH KARTHIKA 1933 CRL.A.No. 497 of 2011() ----------------------- SC.177/2009 of ADDL. DISTRICT & SESSIONS COURT(ADHOC)III, PATHANAMTHITTA .................... APPELLANT(S): APPELLANT: ------------------------------------------- BHADRAN, C NO.4736, CENTRAL PRISON, THIRUVANANTHAPURAM-12. BY ADV. SMT. SYLAJA .S.L (STATE BRIEF) RESPONDENT(S): --------------------------- STATE OF KERALA REPRESENTED BY A PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SMT. LALIZA.T.Y. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl.A.No.497 of 2011 ------------------------------- Dated this the 19th day of November, 2011. J U D G M E N T The sole accused in S.C.No.177 of 2009 of the court of Additional District & Sessions Judge (Ad hoc) Fast Track court-III, Pathanamthitta, is the appellant and in this appeal he challenges his conviction and sentence imposed against him under Section 8(2) r/w 8(1) of the Abkari Act vide judgment dated 8.11.2010 of the above trial court. 2. The prosecution case is that on 28.12.2007 at about 6 p.m., the accused was found in possession of 1 ½ ltrs. of arrack in a bottle in front of the gate of AVT factory, situated at Maniyar-Mukkumpuram kara in Vadasserikkara Village. On the basis of the above allegation, crime No.62 of 2007 was registered in the Chittar Excise range and on completing the investigation, a report was filed in the court of Judicial First Class Magistrate-Ranny, wherein 2 Crl.A.No.497 of 2011 C.P.No.24 of 2008 was instituted and the learned Magistrate by his order dated 31.5.2008 in the above committal proceedings, committed the case to the Sessions court, wherein it is received as S.C.No.177 of 2009 and subsequently made over to the present trial court for disposal. Accordingly, when the accused was produced from the custody, after hearing the prosecution as well as the defence, a formal charge was framed against the accused for the offence punishable under Section 8(2) r/w 8 (1) of the Abkari Act, which when read over and explained to the accused, he denied the same and pleaded not guilty. Consequently, the prosecution adduced its evidence by examining Pws.1 to 6 and producing Exts.P1 to P9. One material object is identified as M.O.(1). Towards the conclusion of the trial, the learned Judge of the trial court has found that there is convincing and acceptable evidence to show that the accused possessed prohibitory liquor, in violation of the provisions of the Abkari Act and thus found that the prosecution has succeeded in proving the guilt of 3 Crl.A.No.497 of 2011 the accused beyond shadow of doubt and accordingly the accused is convicted for the offences punishable under Section 8(2) r/w 8(1) of the Abkari Act. On such conviction, the learned Judge sentenced the accused to undergo rigorous imprisonment for 8 years and to pay fine of Rs.1 lakh and in default, he is directed to undergo simple imprisonment for one year. It is ordered that the period of pre-trial detention of the accused will be treated as set off. It is the above findings and order of conviction and sentence are challenged in this appeal. 3. As the appellant is undergoing imprisonment in pursuance to the judgment impugned, he preferred this appeal from jail and on receiving such jail appeal, as ordered by this Court, the Registry has appointed Adv.Smt.Shylaja S.L., from the panel of State Brief to prosecute the matter. Thus, I have heard Smt.Shylaja S.L., learned counsel for the appellant and learned Public Prosecutor. 4. The specific case of the prosecution is that, on 4 Crl.A.No.497 of 2011 28.12.2007 at about 6 p.m., the accused was found in possession of 1 ½ ltrs. of arrack in a bottle in front of the gate of AVT factory. To prove the above allegation, the prosecution has mainly depended on the evidence of Pws.1 and 2. PW1, the officer who detected the offence, was working as Excise Inspector of Chittar Excise Range. When PW1 was examined, he had deposed that on 28.12.2007, when he was on patrol duty along with PW2 and others and when they reached in front of AVT factory, they found the accused standing in front of the gate of the said factory holding a bottle and on seeing the Excise officials, the accused got perplexed and on suspicion, PW1 approached the accused and inspected the bottle in the presence of witnesses and on examination of the contend of the liquid by tasting and smelling, he realised that it was arrack and consequently he arrested the accused and seized the contraband article after drawing sample. According to him, he affixed label on the items, after obtaining signature of the accused and witnesses, which he seized as per Ext.P3 5 Crl.A.No.497 of 2011 mahazar. When PW1 was examined, the prosecution has got marked Ext.P1 arrest memo, Ext.P2 arrest intimation notice given to the brother of the accused and Ext.P3 mahazar prepared by PW1. PW1 has also identified the bottle which seized from the possession of the accused, as M.O.1. When PW2 was examined, he had also deposed in terms of the deposition of PW1. PW2 is the person who accompanied PW1 at the time of detection of the crime. PW2 has also identified M.O.1 material object. According to the prosecution, after the seizure of the contraband article and the arrest of the accused, PW1 and party reached the Excise Range office and handed over the same to PW3. The evidence of PW3 shows that, on receiving M.O.1, and the sample drawn and the accused and connected papers on 28.12.2007, he registered Ext.P5 occurrence report and thereafter he produced the accused before the Committal court as per Ext.P6 remand report. According to PW3, he produced the contraband article and the samples and material object etc. before the court as per Ext.P7 property 6 Crl.A.No.497 of 2011 list. He had also deposed that he had prepared Ext.P8 forwarding note for sending the sample for analysis and Ext.P9 is the chemical examination report, which would show that the sample contained 29.14% by volume of ethyl alcohol. In corroboration of the evidence of PW3, PW4 the thondy clerk of the committal court deposed that, M.O.1 and sample were received in the court on 29.12.2007 and he had certified the same and convinced the correctness of the same. According to PW4, he entered those items in the property register as T.R.388 of 2007. According to PW4, he had forwarded the samples to the laboratory for chemical analysis on 14.2.2008 as per the direction of the learned Magistrate on the basis of Ext.P3 forwarding note furnished by PW3. Ext.P9 chemical examination report shows that, they have received one sealed bottle containing 200 ml. of clear and colourless liquid alleged to be arrack involved in Crime No.62 of 2007 of Chittar Excise Range on 14.2.2008 and on analysis, it shows that the same contain ethyl alcohol. The liquid contained 29.14% by volume of ethyl 7 Crl.A.No.497 of 2011 alcohol. It is the above evidence and materials formed basis for the learned Judge of the trial court for his finding and convicting the appellant. 5. Learned counsel for the appellant vehemently submitted that, regarding the seizure of the contraband article and the arrest of the accused, there is only the interested versions of Pws.1 and 2 and absolutely there is no independent evidence and therefore the trial court is wrong in its finding and convicting the appellant, on the basis of the sole interesting testimony of Pws.1 and 2. Therefore, according to the learned counsel the conviction recorded against the appellant is liable to be set aside. Whereas the learned Public Prosecutor submitted that, the evidence of Pws.1 and 2, though they are official witnesses, are acceptable especially in the absence of any contradiction or infirmities brought on record. According to the learned Public Prosecutor, the evidence of Pws.1 and 2 are supported by the contemporary documents and though the independent witnesses turned hostile, the same cannot 8 Crl.A.No.497 of 2011 be a ground to reject the prosecution allegation. Thus according to the learned counsel, the findings and the conviction recorded by the court below is absolutely on the basis of evidence and materials on record and no interference is warranted. 6. I have carefully considered the rival arguments advanced by the learned counsel for the appellants and the learned Public Prosecutor and I have gone through the judgment of the trial court as well as the deposition of the witnesses and other documentary evidence and materials. 7. In the light of the rival contentions raised by the counsel for the appellant, the learned Public Prosecutor and in the light of the materials and evidence on record, the question to be considered is, whether the trial court is justified and correct in its finding that the accused has committed offence punishable under Section 8(2) r/w 8(1) of the Abkari Act and if the findings are correct, what would be the sentence. From the arguments advanced by the learned counsel for the appellant and from the appeal 9 Crl.A.No.497 of 2011 memorandum prepared and sent by the appellant shows that, the main point raised in support of the challenge against the conviction is that, the evidence of Pws.1 and 2 are not corroborated by any independent evidence, especially when Pws.5 and 6 who are the independent witnesses turned hostile towards the prosecution. No other point raised in support of the challenge against conviction and sentence imposed against appellant. I have already referred to the evidence of the prosecution, which formed basis for the findings and conviction recorded by the learned Judge of the trial court. When Pws.1 and 2 were examined, they have categorically stated the entire incident which lead to the arrest of the accused and seizure of contraband article from the physical possession of the appellant. Though Pws.1 and 2 were cross examined, nothing brought on record to discredit their version. The evidence of Pws.1 and 2, the official witnesses, are supported by contemporary documents like Ext.P1 arrest memo, Ext.P2 arrest intimation and Ext.P3 seizure mahazar. 10 Crl.A.No.497 of 2011 About this aspect, there was no cross examination on Pws.1 and 2 and in effect, the defence has accepted the same. The attempt of the defence is that, as there is no independent evidence to corroborate the evidence of Pws.1 and 2, their evidence cannot be relied and acted upon. In the absence of any contradiction or infirmities in the evidence of Pws.1 and 2, according to me, the above contention has no relevance and unacceptable. It is pertinent to note that in the present case, it cannot be said that the prosecution has not cited any independent witnesses and examined. Pws.5 and 6, who are the attestors to Ext.P3 seizure mahazar, were cited as charged witnesses but when they were examined, they turned hostile. In the light of the decision, which referred to by the learned Judge of the trial court in, Vikraman Vs. State of Kerala (2007(1) KLT 1010), Sabu Vs. State of Kerala (2007(4) KLT 169) and in Abdul Rasheed Vs. State of Kerala (2008(3) KLT 150), the learned Judge of the trial court is fully justified in repelling the contention 11 Crl.A.No.497 of 2011 raised by the defence. 8. It is also relevant to note that, as per the evidence of PW3, it is crystal clear that on the date of the arrest of the accused and seizure of the contraband article, the accused, the contraband article, the samples and the records were produced before PW3, who in turn registered Ext.P5 crime and occurrence report and thereafter, he produced the accused and the contraband article in the court on the next date itself, as evident by Ext.P7 property list and Ext.P8 forwarding note. The above evidence of PW3 is further corroborated by evidence of PW4, the thondy clerk of the committal court. Therefore, according to me the contemporaneous documents produced by the prosecution itself assure the guarantee for the correctness of the prosecution allegation and thus the evidence of Pws.1 and 2 will inspire the confidence of the court. Therefore, though Pws.5 and 6 turned hostile, the same will not anyway affect the prosecution case. 9. In the light of the facts and circumstances involved 12 Crl.A.No.497 of 2011 in the case and the forgone discussion, I am of the view that, the learned Judge of the trial court is fully justified in his finding and recording the conviction against the appellant. Accordingly, the conviction of the appellant as recorded by the trial court is confirmed. 10. Regarding the sentence, the learned counsel for the appellant submitted that a lenient view may be taken, especially at the time of occurrence the accused was only at the age of 39 years and further considering the fact that the quantity involved in the case is only a meagre quantity. 11. I find some force in the submission of the learned counsel with respect to the sentence. From the materials it appears that, the appellant is an agriculturist who was only at the age of 39 years at the time of the alleged occurrence and the quantity involved is only 1 ½ ltrs. When the accused was heard on the question of sentence, he craved for mercy and stated that he is the only bread winner of his family. Having regard to the facts and circumstances involved in the case and in the light of the mitigating 13 Crl.A.No.497 of 2011 circumstances as indicated above, I am of the view that, the sentence imposed against the appellant requires reconsideration and according to me, one year rigorous imprisonment is sufficient to meet the ends of justice and while confirming the sentence to pay fine of Rs.1 lakh, the default sentence can be reduced into one month simple imprisonment. Accordingly, the sentence imposed against the appellant is modified and reduced and thus he is sentenced to undergo rigorous imprisonment for a period of one year and he is also sentenced to pay a fine of Rs.1 lakh and in default he is directed to undergo simple imprisonment for one month. The appellant is entitled to get set off under Section 428 of Cr.P.C. 12. In the result, the appeal is dismissed, confirming the conviction recorded by the trial court against the appellant for the offence punishable under Section 8(2) r/w 8(1) of Abkari Act but subject to the modification with respect to the sentence to the extent indicated above. 13. In the light of the above modification with respect 14 Crl.A.No.497 of 2011 to the sentence, the Registry is directed to forward the Gist of this judgment to the Superintendent, Central Prison, Thiruvananthapuram, forthwith for appropriate action in the matter. V.K.MOHANAN, Judge ami/