IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1071 of 2003()
1. BHASKARAN, AGED 39 YEARS,
... Petitioner
Vs
1. THE EXCISE INSPECTOR, BALUSSERY
... Respondent
For Petitioner :SRI.SUNNY MATHEW
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :29/07/2009
O R D E R
M.N. KRISHNAN, J.
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Crl. Appeal NO. 1071 OF 2003
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Dated this the 29th day of July, 2009.
J U D G M E N T
This appeal is preferred against the conviction and
sentence passed by the Addl. Sessions Judge, Fast Track
Court, Adhoc-I, Kozhikode in S.C.439/99. The accused was
charge sheeted for offence u/s 55(a) of the Abkari Act and was
convicted and sentenced to undergo rigorous imprisonment for
a period of two years and to pay a fine of Rs.1,00,000/- and in
default to undergo further imprisonment for a period of nine
months. It is against that decision the accused has come up
in appeal.
2. The points that arise for determination are:
(1)Whether the materials are sufficient to convict the
accused u/s 55(a) of the Abkari Act?
(2) In case of guilt, is the sentence excessive?
Points 1 and 2:
3. Heard the learned counsel for the appellant as well
as the Prosecutor. The learned counsel for the appellant
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would contend that the evidence is lacking and that
independent witnesses are turned hostile and therefore a
conviction cannot be sustained in this case. It is the case of
the prosecution that on 30.10.97 at about 6.30 p.m. while the
excise officials were on patrol duty and when they reached
near the Krishibhavan office they found the accused carrying a
Can and got perplexed on seeing them. He was intercepted,
examined and was found that he was carrying liquor in the
Can of two litres which was found to be illicit arrack by taste
and smell. Thereafter 180 ml of sample was taken and it was
sealed and thereafter the remaining liquid was also sealed and
seizure mahazar was prepared. He was produced before Court
on the very same day and material objects were produced on
the next day. In support of the case of the prosecution PWs.1
and 2 had given evidence. PW1 was the Excise Inspector who
conducted the detection. He had deposed before Court that
they found the accused near the Krishibhavan office with
plastic can which contained the illicit arrack. According to him
sample was taken and it was sealed. Later accused was
arrested and produced before Court. Though he had been
cross examined at length nothing has been brought out to
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discredit the evidence. He had clearly spoken about the place
of arrest, where the accused was apprehended, how sample
was taken and how it was sealed etc.
4. PW2 is another officer who had accompanied PW1.
He had also deposed in line with PW1 and nothing has been
brought out in his cross examination as well. PW3 and PW4
are the two independent witnesses. As usual they have turned
hostile. They had admitted their signature in the seizure
mahazar but not spoken anything about the recovery. PW5 is
the person who had completed the investigation and laid the
charge. So the evidence of PWs.1 and 2 makes it clear that
the accused was apprehended and was found to be in
possession of two liters of arrack. The material objects were
produced on the very next day, i.e. on 1.11.97 and it has been
sent for chemical analysis. The Chemical examiner’s report,
Ext.P7 would further reveal that the seal on the bottle was in
tact and found tallied with the sample seal provided. It is also
noted that the sample of liquid contained 28.2% by volume of
ethyl alcohol. Therefore the possession of illicit arrack with
the accused stands proved beyond doubt. The learned counsel
would contend that since the independent witnesses had
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turned hostile the Court should not accept the evidence of
PWs.1 and 2. This matter came up for consideration before
this Court in the decision reported in Sivaraman v. State of
Kerala (1981 KLT S.N. Case No.17 page 9). In that
decision the Court observed that independent witnesses are
turning hostile for the reasons best known to them. Then the
Court proceeded and held that the evidence of official
witnesses can be accepted when they stand to meticulous
scrutiny. On a meticulous scrutiny I find the evidence of
PWs.1 and 2 are intrinsically reliable and inherently probable.
There is no ground to disbelieve them. Therefore I find the
Court below has not erred in finding the accused guilty u/s 55
(a) of the Act.
5. Now turning to the question of sentence. The Court
below has convicted the accused and sentenced him to
undergo rigorous imprisonment for a period of two years and
to pay a fine of Rs.1,00,000/- and in default to undergo
imprisonment for nine more months. It is clear that no other
criminal antecedents are there and it is also stated by him that
he has got his old mother, wife and two daughters to be
looked after by him and if he is sent to jail it may cause him
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difficulty. Learned counsel for the appellant also strongly
persuaded me to take a lenient view. Taking into
consideration the quantum of the liquor as well as the factum
of the inability of the members of the family for survival
without the help of the accused I am inclined to reduce the
sentence to that of three months rigorous imprisonment and
the default sentence to a period of one month.
In the result the Crl.Appeal is disposed as follows:
1) Finding of guilt u/s 55(a) of the Abkari Act is
confirmed.
2) The sentence is modified and the accused is
sentenced to undergo rigorous imprisonment for a period of
three months and to pay a fine of Rs.1,00,000/- and in default
to undergo simple imprisonment of one month.
4) The accused is entitled to entitled to set off as
contemplated under S.428 Cr.P.C.
M.N. KRISHNAN, JUDGE.
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