IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1000 of 2009(D)
1. BABY, C.NO.3731,
... Petitioner
2. PANKAJAKSHAN, C.NO.3730,
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :ADV.ADEEP ANWAR(STATE BRIEF)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :14/07/2009
O R D E R
M.N.KRISHNAN, J.
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CRL.A.No.1000 OF 2009
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Dated this the 14th day of July, 2009
J U D G M E N T
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This is an appeal preferred against the conviction and
sentence passed in S.C.310/07 of the Addl. Sessions Judge,
(Ad hoc – II) Thodupuzha. Two accused namely, Baby and
Pankajakshan were charge sheeted for the offence u/s.8(1) and
(2) and u/s.55(g) of Abkari Act and both of them were convicted
u/s.55(g) of Abkari Act and sentenced to undergo rigorous
imprisonment for a period of 4 years each and to pay a fine of
Rs.1 lakh each and in default to undergo simple imprisonment
for 3 months each. It is against that decision the appellants
have preferred this jail appeal and as they did not have a
counsel to argue their case, Adv.Sri.Adeep Anwar was
appointed as the State Brief. The learned counsel had
elaborately argued the matter before me. The points that arise
for determination are,
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1.Whether there are sufficient materials to hold that
the accused have committed offence u/s.55(g) of
Abkari Act ?
2.In case of guilt, whether the sentence awarded is
excessive ?
2. Points 1 and 2 :- Heard the learned counsel as well
as the prosecutor. It is the case of the prosecution that both
the accused were found distilling illicit arrack on 16.10.95 at
about 4 P.M. near the residential property of Olickal Govindan,
situated on the northern side of Muthirapuzha. PW1 is an
independent witness examined by the prosecution, to prove the
case and PW3 is the Sub Inspector of police, who had
detected and seized the material objects. PW1 one Jose,
identifies both the accused and deposed that he knows both of
them. He had deposed before the court that on 16.10.95, while
he was standing on the road side he saw the police jeep
coming and as per the direction of the police, he also
proceeded and when they reached the place of incident, he
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was able to see a person sitting near the fire and another
person holding a can. It is further deposed by him that, there
was wash in a vessel. It is marked as M.O.1, steel can marked
as M.O.2, a smaller vessel marked as M.O.3, a hose marked
as M.O.4 and a plastic can marked as M.O.5, wherein the illicit
liquid was collected. According to him from the M.O.5 liquid,
two bottles of samples were taken and they were sealed and
from M.O.1, 375 ml. each of wash was taken as sample and it
was also sealed. He identifies one such bottle of arrack and
wash as M.O.6 and M.O.7. His evidence is attempted to be
tested by suggesting that, he had political enemity with the
accused that had made him a witness. The contradictions
pointed out are that, he would say that he had came on seeing
the police but in the chief he would say that the police asked
him to come down. These are all trivial contradictions, which
does not cut at the evidence of the witness which is otherwise
acceptable. PW3 is the Sub Inspector of police. He would
depose that on information he had proceeded to the place and
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in the presence of PW1, had seen the accused distilling illicit
arrack and one was sitting near the fire and the other was
holding a can and that can contained illicit arrack and there
was wash in the vessel. He also speaks about the sampling
and sealing and his evidence is totally acceptable for the
reason that it does not contain material contradiction at all. It is
true that PW2 has turned hostile, but the reason for the
enemity of PW1 against the accused suggested to PW1, is
given a go-by when cross examination was done, of this
witness. So the evidence of Pws.1 and 3 does not suffer from
any infirmity and it would establish the fact that the accused
were found distilling illicit arrack, as spoken to by Pws.1 and 3
when they went to the spot. In order to satisfy my conscience,
I had perused the other documents as well, which would
indicate that the material objects and the samples were
produced before the court on the very next day with sample
sealed and the forwarding note was also prepared immediately
and given. The chemical examiners report would reveal that,
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one bottle contained 24.78% by volume of ethyl alcohol and
the other bottle of wash of 0.93 %. It is also seen from that, the
seal on the packets and on the bottles were intact and found
tallied with the sample seal provided. So all the materials are
in a proper order and therefore it is evident that the prosecution
had succeeded in proving that the accused were
manufacturing illicit arrack, which would attract an offence
u/s.55(g) of Abkari Act. Therefore, I sustain the conviction.
3. Turning to the question of sentence. It is seen that the
court below has convicted them to undergo 4 years
imprisonment and also to pay a fine of Rs.1 lakh. I feel it is
certainly on the higher side considering the quantum involved
and other attending circumstances, I am inclined to show
leniency by reducing the imprisonment to a period of 1 year
and retaining the fine and default sentence. In the result the
criminal appeal is disposed of as follows :-
1.The conviction u/s.55(g) of Abkari Act is upheld.
2.The sentence is modified and the accused are
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sentenced to undergo rigorous imprisonment for
a period of 1 year each u/s.55(g) and to pay a
fine of Rs.1 lakh each and in default to undergo
simple imprisonment for a period of 3 months
each. They are entitled to set off as
contemplated u/s.428 of Cr.P.C.
M.N.KRISHNAN, JUDGE
ami.