IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 28TH FEBRUARY 2008 / 9TH PHALGUNA 1929 CRL.A.No. 1027 of 2007() ------------------------ SC.1268/2006 of ADDL.SESSIONS COURT-TRIAL OF ABKARI ACT CASES,NEYYATTINKARA CP.97/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, NEYYATTINKARA .................... APPELLANT: ----------- SUNIL KUMAR C.NO.1712 CENTRAL PRISON TRIVANDRUM BY ADV. SRI.P.C.BABU [STATEBRIEF] RESPONDENTS: ------------- STATE OF KERALA REPRESENTED BY A PUBLIC PROSECUTOR BY PUBLIC PROSECUTOR MR.P.RAVEENDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ---------------------- Crl.Appeal.No.1027 of 2007 ---------------------------------------- Dated this the 28th day of February 2008 J U D G M E N T Convict No.1712, Sunil Kumar of Central Prison, Thiruvananthapuram has preferred this appeal assailing the conviction and sentence passed against him under Section 58 of the Kerala Abkari Act by the Additional Sessions Judge, Neyyattinkara vide judgment dated 24/4/2007 in S.C.No.1267/2006 clubbed with S.C.No.1268/2006. On conviction, he has been sentenced by the court below to undergo R.I for a term of three years and to pay a fine of Rs.1,00,000/- and in default to undergo R.I for a further term of six months. 2. Crime No.63/05 of Neyyattinkara Excise Range was registered by the Excise Inspector consequent on detection and seizure by PW4, the Preventive Officer of Excise and excise party accompanying him, of 5 litres of spirit in MO1 can possessed by the appellant, under Ext.P1 mahazer effecting also arrest of the appellant under Ext.P2 arrest memo on 20/08/2005. The prosecution case is that PW4, the Preventive Officer of Neyyattinkara Excise Range, was conducting patrolling along Crl.A.No.1027/07 2 Vizhinjam - Poovar road in front of the Oottara Sri Chidambaranatha Temple and when they reached near the Kulikadavu on the western side of the road in Kottukal Desom in Kottukal Village along with PW3, the Excise Guard, they found the appellant coming with MO1 can along the side of the thodu on the western side of the kulikadavu. Thereupon PW4 intercepted him and examined the contents in the said can and it was found that MO1 can of five litre capacity was filled with spirit. This was at about 10.15 a.m on 20/8/2005. The appellant disclosed that MO1 can with the contents therein was entrusted with him by the second accused for sale after diluting it. PW4 effected seizure of MO1 can with the spirit therein, prepared Ext.P1 mahazer in that behalf and effected arrest of the appellant, preparing Ext.P2 arrest memo in that regard. 200 ml of the contents in MO1 can was taken as sample in another bottle and was sealed and the spirit contained in MO1 can as also the sample taken, along with the accused was produced before PW5, the Excise Inspector who, on the basis thereof, registered the case as crime No.63/05 of Neyyattinkara Excise Range against the appellant as also against the second accused, Crl.A.No.1027/07 3 who, according to the appellant, was the person, who entrusted MO1 can with the spirit therein to him, preparing Ext.P6 Crime and Occurrence Report in that behalf. He forwarded Ext.P1 mahazer, Ext.P2 memorandum, Ext.P6 crime and occurrence report and Ext.P7 property list along with MO1 can and the sample with it as also Ext.P5 forwarding note to court and also produced the appellant before the learned Magistrate with Ext.P8 remand report. Ext.P9 is the chemical analysis report obtained from the chemical analyst's laboratory subjecting the sample taken from the contents in MO1 to chemical analysis, the said sample having been forwarded along with Ext.P5 forwarding note for chemical analysis. The chemical analysis report shows that the sample of liquid so forwarded contained 94.54% by volume of ethyl alcohol and it was identified as rectified spirit free from noxious ingredient injurious to health. Consequently PW5 completed the investigation in the case and laid final report against the appellant and the second accused for offence under Section 55A of the Kerala Abkari Act. The Judicial First Class Magistrate-III, Neyyattinkara, before whom the final report was so submitted, committed the case against the second accused to Crl.A.No.1027/07 4 the Sessions Division , Thiruvananthapuram after complying with all legal formalities vide Committal Proceedings No.97/06 and thereafter on production of the appellant he also was committed to the Sessions Division, Thiruvananthapuram. The case against the second accused was registered on the file of the Sessions Division, Thiruvananthapuram as S.C.No.1267/06 and the case as against the appellant/first accused was registered as S.C.No.1268/06 and the cases were made over to the Additional Sessions Judge for trial of Abkari Act cases, Neyyattinkara for trial and disposal. The Additional Sessions Judge clubbed both the cases; but however retained both the case numbers. On production of both the accused from jail, they engaged their own lawyer to defend the case on their behalf. Thereafter preliminary arguments were heard; charge was framed by the court below against both the accused for offence under Section 58 of the Kerala Abkari Act; was read over and explained to them and they were questioned. Thereupon they pleaded not guilty and consequently a trial of the case was conducted by the court below. Crl.A.No.1027/07 5 3. On the side of the prosecution, PWs 1 to 6 were examined, Exts.P1 to P12 were got marked and MO1 can was got identified. On the prosecution closing their evidence, the accused were questioned under Section 313 Cr.P.C. Thereupon both the accused denied all incriminating circumstances appearing in evidence against them and maintained that they are innocent. According to the appellant/first accused, he was being apprehended by the police from his house where he was sleeping with his child and they got some papers signed from him and that he is innocent and has not got himself engaged in the sale of arrack. However, no evidence was adduced in defence. 4. The court below considered the case in the light of the evidence adduced as aforesaid, found that the second accused has not committed the offence alleged against him and acquitted him; but found the appellant/first accused guilty of the offence under Section 58 of the Kerala Abkari Act with which he stood charged, convicted him thereunder and sentenced him as already stated. Hence this appeal by the aggrieved appellant/first accused. Crl.A.No.1027/07 6 5. The appellant had not engaged a lawyer of his choice and therefore Adv.Sri.P.C.Babu was appointed on State Brief to argue the appeal on behalf of the appellant. Arguments of the learned counsel for the appellant and the learned Public Prosecutor are heard. 6. It is vehemently contended before me by the counsel appointed on State Brief on behalf of the appellant that PWs 1 and 2 are independent witnesses to the occurrence as per the prosecution case; but both of them have disowned to have witnessed the occurrence and consequently there is only the evidence of excise officials implicating the appellant in the commission of the crime; that it is highly improper to enter into conviction of the appellant on the basis of the evidence given by the excise officials alone who have foisted this case against the appellant who has been taken into custody from his house and therefore the appellant deserves to be acquitted in reversal of the conviction entered into by the court below. He has taken me through the entire evidence in the case. 7. PWs 1 and 2 are independent witnesses examined by the prosecution as occurrence witnesses and are attestors to Crl.A.No.1027/07 7 Ext.P1 seizure mahazer. Both of them have given evidence that they had signed in Ext.P1; but they do not however support the prosecution case of MO1 can with spirit therein having been seized from the possession of the appellant. PW4 is the Preventive Officer, who had effected the detection and seizure in the instant case in the course of conducting patrolling and PW3 was the excise guard accompanying him. PW4 has given evidence swearing to the detection, seizure and arrest of the appellant and that is corroborated also by the testimony of PW3, the Excise Guard who had accompanied him. Despite sincere effort made by the counsel for the appellant, nothing has been brought out in evidence of either PW4 or PW3 to discredit their testimony or to show that the evidence tendered by one is not consistent with or is contradictory to the evidence tendered by the other. The only discrepancy in their evidence is that according to PW4, the bottle for collecting sample was procured from the scene of occurrence; whereas according to PW3, for the purpose of taking sample, empty bottle had also been taken with them. It could probably be that PW3 had taken empty bottle in the jeep for the purpose of taking sample on detection and Crl.A.No.1027/07 8 seizure of arrack, spirit or other liquor which would attract offence under the Kerala Abkari Act of which probably PW4 was not aware. However, apart from the above discrepancy, no further question was asked in cross-examination with respect to the procuring of the bottle to take sample and therefore the discrepancy above stated by itself is not enough to cause suspicion on the genuineness of the prosecution case. PW5 is the Excise Inspector who is the investigating officer in this case and he has sworn to the procedure adopted by him on production by PW4 of the first accused before him along with the material objects recovered. It is seen that Ext.P6 crime and occurrence report was presented before the learned Magistrate at 7.30 p.m on 20/8/2005 namely the date of occurrence itself along with Ext.P2 arrest memo, Ext.P1 seizure mahazer and Ext.P8 remand report as also the material objects along with Ext.P7 property list. The fact that mahazer along with the property list, the accused and the contraband articles were produced before the learned Magistrate promptly in the evening on the date of occurrence gains support to the genuineness of the prosecution case. No infirmity is pointed out by the counsel for the appellant Crl.A.No.1027/07 9 in the procedure adopted in effecting the seizure and the sampling so as to contend that any prejudice is caused to the appellant by reason of any such infirmity. Consequently therefore, I am unable to come to a different conclusion than that arrived at by the court below that the appellant has committed offence punishable under Section 58 of the Kerala Abkari Act. 8. The learned counsel for the appellant contends that even in the event of the appellant being found guilty, the sentence awarded is highly excessive. The contention so advanced is not without merit. The contraband involved in this case is five litres of spirit only and the court below has sentenced the appellant to R.I for term of three years and to pay a fine of Rs.1,00,000/- and in default to undergo R.I for a further term of six months. The punishment so awarded is on the high side as the quantity of contraband involved is only five litres and the prosecution has no case that the appellant is a habitual offender. 9. In the result, I confirm the conviction of the appellant for offence under Section 58 of the Abkari Act; but at the same time modify and reduce the substantive term of imprisonment Crl.A.No.1027/07 10 from three years to one year. The rest of the sentence namely the imposition of fine and the sentence awarded in default of payment of fine are maintained. 10. Communicate the gist of the decision to the appellant through the Superintendent of Central Prison, Thiruvanatnhapuram. The Superintendent of Central Prison, Thiruvanatnhapuram shall release the appellant forthwith in case he has already undergone R.I for a term of one year as also R.I. for a term of six months awarded in default of payment of fine, if at all the fine is not paid and provided his detention is not required to be had in connection with any other case. (K.P.BALACHANDRAN, JUDGE) jsr Crl.A.No.1027/07 11 Crl.A.No.1027/07 12 K.P.BALACHANDRAN, J. CRL.A.No.1027 of 2007 JUDGMENT 28TH DAY OF FEBRUARY 2008