IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 17TH JANUARY 2011 / 27TH POUSHA 1932 CRL.A.No. 1141 of 2004(A) ------------------------- SC.121/2003 of ADDL. SESSIONS COURT (ADHOC I), THODUPUZHA .................... APPELLANT(S): ACCUSED --------------------- RAPHAEL ALIAS KUNJU, S/O.RAPHAEL, VADAKKAEL HOUSE, PURAPUZHA VILLAGE, THODUPUZHA. BY ADV. SRI.K.RAMACHANDRAN SRI.K.MANU RAJ RESPONDENT(S): COMPLAINANT -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. EXCISE INSPECTOR, THODUPUZHA. PUBLIC PROSECUTOR SHRI.K.S.SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Criminal Appeal No.1141 of 2004 ----------------------------------------------- Dated 17th January, 2011. J U D G M E N T This appeal arises from the conviction and sentence passed against appellant under Section 55(b) of the Kerala Abkari Act to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,00,000/-. 2. According to prosecution, Excise officials got reliable information that arrack was being manufactured in the house of one Davis and they proceeded to the place of occurrence after issuing search memo. On reaching there, they found accused distilling arrack. The incident happened on 12.11.1999 at about 7.30 p.m. The accused had no explanation for the act committed by him and hence, he was arrested from the spot. Samples were taken. Articles were seized. Crime was registered and after investigation, charge was laid against appellant. Originally, Davis was arrayed as second accused as owner of the house. After investigation, it was found that the owner is a different person and no offence is committed by such person. Hence, appellant alone was prosecuted. 3. To prove the prosecution case, PW1 to PW6 were Crl.Appeal No.1141/04 2 examined and Exts.P1 to P6 and MO1 to MO9 were marked. The accused put forward a defence, while questioned under Section 313 of the Criminal Procedure that he is innocent of the allegations made. He is a coolie by profession. He used to work for the original second accused, Davis also. There was a raid in the house of Davis and he was asked to be a witness. Davis took him to Thodupuzha and he was caused to sign at the Excise office. 4. The trial court analysed the evidence adduced by prosecution and found that prosecution proved that appellant was found engaged in manufacture of liquor which renders him liable for offence under Section 55(b) of the Abkari Act and he was convicted thereunder. The trial court found evidence of official witnesses, PW1, Inspector of Excise Range and PW2, Preventive Officer to be consistent regarding the incident. 5. Learned counsel for appellant submitted that the independent witnesses PW3 and PW4 turned hostile to the prosecution and they did not support the prosecution. Therefore, the evidence of PW1 and PW2, the official witnesses who speak about the detection of the crime and seizure cannot Crl.Appeal No.1141/04 3 be relied upon, it is argued. The accused is innocent of the allegations made and he was falsely implicated in this case, it is submitted. The second accused was exonerated from the charge and no charge was laid against him. 6. It is further argued that appellant has nothing to do with the house from where articles were seized. It is also submitted that merely because appellant was found in the place of occurrence, he cannot be convicted, in the light of the decision reported in Gopal v. State of Maharashtra (AIR 2008 SC 216). In the said case, a person who was standing near the lorry in which contraband articles were found was acquitted, stating that his presence near the lorry is not an offence. 7. Learned Public Prosecutor submitted that there is absolutely no infirmity in the findings entered into by the court below. The evidence of official witnesses is acceptable and that will prove that accused was found engaged in distilling arrack. On hearing both sides and on going through the records in this case, I find that for the mere reason that independent witnesses turned hostile, the evidence of the official witnesses cannot be Crl.Appeal No.1141/04 4 rejected. It is well settled that for the mere reason that witnesses are official witnesses, their evidence cannot be discarded. 8. On going through the evidence of PW1 and PW2, there is nothing to show that their evidence is motivated. No question is put to PW1 and PW2 whether they had any motive to falsely implicate appellant in a case of this nature. Nothing is brought out from their evidence to show that they have any reason to falsely foist a case against appellant. Though PW1 and PW2, the official witnesses were cross examined, nothing is brought out to discredit their evidence. 9. Learned counsel for appellant was not able to pin- point any discrepancy in the evidence of official witnesses. The evidence of PW1 and PW2 is consistent with each other and there is no reason to reject their evidence. The evidence of PW1 and PW2 clearly show that they saw appellant engaged in distilling arrack. The material objects were also seized from the place of occurrence and produced in court which include the utensils which are used for distillation of arrack. A total quantity of 2.2 litres of arrack was seized in this case. Crl.Appeal No.1141/04 5 10. The decision cited by learned counsel for appellant is not applicable to the facts of this case. This is not a case where appellant was merely found present in the house. But, as per the evidence of PW1 and PW2, he was found engaged in distillation of arrack using necessary utensils. Those were also produced in court. In the above circumstances, I find absolutely no reason to interfere with the conviction passed against appellant. 11. The accused was sentenced to undergo rigorous imprisonment only for a period of six months and to pay fine of Rs.1,00,000/- and in default to undergo simple imprisonment for three months. Set off was also allowed. Considering the nature of offence, I do not think that the sentence is excessive. The sentence passed is only consistent with the gravity of the offence and the circumstances of the accused. Hence, there is no ground to interfere either with the conviction or sentence. This appeal is dismissed. K.HEMA, JUDGE. tgs