High Court Kerala High Court

Bhaskaran vs The Excise Inspector on 29 July, 2009

Kerala High Court
Bhaskaran vs The Excise Inspector on 29 July, 2009
       

  

  

 
 
  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.

ul/-