IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 CRL.A.No. 1184 of 2002() ------------------------ SC.7/2000 of ADDL. SESSIONS COURT (ADHOC), THRISSUR .................... APPELLANT(S): ACCUSED: ---------------------- ROY, S/O. VELATHIPARAMBIL OUSEPH, PORUNNAMKUNNU DESOM, ALLOOR VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S): COMLPLAINANT: ---------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.B.MANU. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- Crl.A.No.1184 OF 2002 ------------------------------------------- Dated this the 9th day of September, 2009 JUDGMENT 1.Convicted for offences punishable under Sections 55(i) and 58 of the Abkari Act, the appellant stands sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rupees One Lakh, in default, to undergo rigorous imprisonment for six months, under each of the aforesaid two counts. Concurrence in sufferance is also ordered. 2.The allegation is that, apprehended by PW1 Excise Preventive Officer, from behind a tea shop of Kolamkanny Ouseph at about 5.30 p.m. on 20.10.1998, the accused was found to be in possession of a plastic bag with 4 bottles of 750 ml each, containing illicit arrack, for sale. Hence, he was charged of having committed offences under Sections 8(1) and (2) of the Abkari Act. On committal, the Court of Session framed charge of commission of offences under Sections 55(i) and 58 of the Cr.A.No.1184/02 Page numbers Abkari Act. The accused pleaded not guilty. His defence was one of total denial. 3.PW1, the detecting officer, was examined. PW4, the Excise Guard and PW5 the Excise Inspector, to the extent they do, corroborates the version of PW1. Chemical analysis report and other exhibits corroborates the version of PW1 regarding the search, seizure, sampling and the result of the chemical analysis. PWs.2 and 3, independent witnesses, cited to prove the seizure mahazar, turned hostile. Assimilating the evidence, the Court of Session concluded that the prosecution succeeded in proving that the accused committed the offences punishable under Sections 55(i) and 58 of the Abkari Act. Accordingly, he was held guilty, convicted and sentenced. 4.Learned counsel for the appellant argued that the conviction under Section 55(i) could not have been made at all in as much as, according to him, there is no legal evidence on record, on the basis of which, it could be inferred that the seized material Cr.A.No.1184/02 Page numbers was sold or stored for sale. The plea is that there is neither any corroborating oral evidence or seizure of any other material which may justify the conclusion as to the possibility of the storage of the material for sale. So much so, it is contended that though storing for sale, by itself, may be sufficient to attract Section 55(i), there is no shred of legal evidence on which the conviction could sustain on that count. It was also argued that the scene mahazar contains an interpolation apparently attempting to show that it was got signed by the accused also. 5. In so far as the conviction under Section 58 is concerned, it was argued on behalf of the accused that there was no corroborating material in support of the version of PW1, particularly when PWs.2 and 3 had turned hostile. It is further argued that even if the conviction under Section 58 were to stand, the sentence imposed is highly excessive and deserves to be trimmed down particularly when the accused is, as stated Cr.A.No.1184/02 Page numbers by him before the learned Sessions Judge, one who has a family consisting of a wife and others to maintain. 6.Learned Public Prosecutor argued that to sustain the conviction under Section 55(i), it is unnecessary to establish that the accused was involved in selling liquor and that, in so far as the allegation that he had stored the liquor for sale is concerned, the evidence of PW1 that while patrolling, he got information about the accused being involved in such transactions in the scene of occurrence in question, is sufficient material to conclude that the offence under Section 55(i) has also been committed. It is further argued that error, if any, on the face of the scene mahazar was explained by PW1 and the said officer has also spoken about the seizure. He further argued that the quantity recovered, viz., 4 bottles of 750 ml each and the recovery of a jerry can from a nearby bush as shown by the accused, are sufficient corroborative materials to sustain the conviction under Section 55(i). It was also argued that there was no ground to interfere with the Cr.A.No.1184/02 Page numbers conviction under Section 58 and the sentence imposed on both counts cannot be treated as excessive having regard to the fact that the offence is in relation to a banned substance and also because it results in an activity which is essentially anti-social and having impact on health of the consumers. 7.PW1, the detecting officer, spoke in terms of the allegations levelled against the accused. The information regarding the activity of sale of illicit liquor from the scene of occurrence as available to PW1 during patrol duty was also spoken to by him. Though not specifically cross examined on the issue regarding the source of that information, the evidence of PW1 was that he remained in the jeep and two other officers had earlier confirmed the activity attributed to the accused. The scene of occurrence is stated to be behind a tea shop. The owner of the tea shop is not a witness. The witnesses cited to prove the drawing up of the mahazar turned hostile, though they admitted their signatures in the mahazar. This means that their evidence could be used only to the extent of proving Cr.A.No.1184/02 Page numbers the mahazar. The time of search, seizure and arrest is 5.30 p.m. It has to be reasonably assumed that there could have been other independent persons available in the locality. The mahazar also does not disclose the presence of any other person. On the whole, the evidence on record is insufficient to hold that the charge under Section 55(i) that illicit liquor was possessed for sale is established beyond doubt. 8.On to the conviction under Section 58, it needs to be noted that the evidence of PWs.1, 4 and 5 corroborated by the documentary evidence on record categorically proved the search, seizure and arrest and the nature of the material seized. The chemical analysis report is beyond challenge. No personal animosity or any other vitiating element is suggested as against PW.1, 4 and 5. The accused person does not put any particular defence in his statement under Section 313 Cr.PC, except a total denial. With the materials on record, the court below was wholly justified in concluding that the accused Cr.A.No.1184/02 Page numbers had committed the offences punishable under Section 58 of the Abkari Act. 9.Having seen that the accused is not proved to be guilty under Section 55(i), the conviction to that extent needs to be set aside. The conviction under Section 58 stands. 10.On the question of sentence, the accused was 31 years old at the time of occurrence. His occupation, as recorded by the court below, shows that he was a coolie. Then he had to maintain his wife and child. With the passage of time, the learned counsel for the petitioner states that he would have reformed himself, if at all there could be any attribute of any tendency to commit such wrong. But, the mere passage of time, with case pending before the courts, is no ground by itself to reduce sentence. That, in fact, should not have a marked impact on the sentencing policy of courts. Taking into consideration the age of the accused at the time of occurrence, the social strata from which he comes and the quantity of illicit Cr.A.No.1184/02 Page numbers arrack recovered from him and also the finding that it has not been proved that he possessed the material for sale, I deem it justifiable to sustain the fine of Rupees One lakh imposed under Section 58, but modify the sentence of imprisonment imposed under that Section to be to undergo rigorous imprisonment for nine months. 11.In the result, in modification of the order of conviction and sentence imposed by the court below, it is ordered that: (i) The conviction under Section 55(i) of the Abkari Act is set aside and the accused is acquitted of the charge on that count. (ii) The conviction under Section 58 of the Abkari Act is confirmed. (iii) The sentence imposed by the court below is vacated and the accused is sentenced to undergo rigorous imprisonment for nine months and to pay fine of Cr.A.No.1184/02 Page numbers Rs.1,00,000/-. Any amount already deposited in terms of the interim orders will be given due credit to. The learned Magistrate shall take necessary steps for execution of the modified sentence hereby imposed. The appellant shall appear and his sureties shall produce him before the Judicial Magistrate of First Class, Irinjalakuda on 20.11.2009 to suffer the sentence, with proof of having satisfied the payment of fine, if paid. Needless to say, the learned Magistrate shall take necessary action against the appellant and his sureties under Section 446 Cr.PC., if he does not appear as directed above. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.19/9.