IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1757 of 2003()
1. CHANDRAN S/O.VALANCHI,
... Petitioner
Vs
1. STATE OF KERALA REP. BY THE]
... Respondent
For Petitioner :SRI.V.M.SYAM KUMAR
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.A.NO.1757 OF 2003
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Dated this the 29th day of July, 2009
JUDGMENT
This is an appeal preferred against the conviction and
sentence passed in S.C.No.9/2000 of the Additional Sessions
Judge (Adhoc), Fast Track Court-I, Manjeri by the second
accused. The second accused was charge sheeted for the
offences under Sections 55(a) and (g) and was convicted for
the offence under Section 55 (g). He was sentenced to undergo
imprisonment for a period of three years and to pay a fine of
Rs. One lakh and in default to undergo further imprisonment
for a period one year. It is against that decision, the second
accused has come up in appeal.
2. The points that arise for determination in the appeal
are whether materials are sufficient to hold the appellant
guilty under Section 55(g) of the Abkari Act (2) in case of
guilt, the sentence imposed is excessive.
3. Points 1 and 2:
Heard the learned counsel for the appellant as well as
the Public Prosecutor. The learned counsel for the appellant
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very strongly contends before me that materials are not
sufficient and evidence of the witnesses are not acceptable
and really there is nothing to connect the accused with the
crime.
4. It is the case of the prosecution that on 23.10.1998 at
about 6.15 p.m the accused on information that the appellant
and one Ravi were distilling illicit arrack in a Cashew
Plantation belonging to one Kuttikrishnan, the excise party
proceeded and on their arrival, the first accused who was
holding a Can, put it down and ran away and he could not be
apprehended immediately. They were able to find the present
appellant stirring in a tin pot with a stick and on examination,
it was found to be wash. As A1 could not be apprehended
and as the Can had been broken, immediately sample was
taken from the Can and later from the tin containing wash in
the presence of the witnesses and it was sealed. The accused
was arrested and later produced before the court.
5. The supporting evidence is that of PWs 1 and 2.
PW1 had deposed about the factum of their patrolling, visit of
the place where the accused was found and that the second
accused namely, the appellant was stirring a liquid in the
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tin vessel which was placed beneath the earth. The sample
was taken from the pot containing wash as the material
object but the stick which was stirred was not taken. Later,
the matter was proceeded further. He had been cross
examined at length. The cross examination is directed on the
question of ownership of the property and the fact that the
accused was residing in a far of place from the garden and
the specific contention is that as the accused did not care to
carry the wash which they have found out, the officials have
foisted a false case.
6. PW2 is the person who had accompanied Pw1. He
had also spoken in line with the evidence of PW1 and he had
also categorically denied the suggestion that the appellant was
booked in a false case. PW3 and PW4 are the independent
witnesses to the seizure mahazer who had turned hostile.
PW5 had spoken about his signature in the scene mahazer.
PW7 is the person who had conducted the investigation and
had spoken about the way in which the investigation was done
and how the matter has been proceeded with.
7. DW1 is a witness examined by the accused to prove
that the accused was an employee and he was caught hold of
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by the police when he disobeyed their order to carry the tin.
The seizure mahazer speaks about the way in which the
things have been done. The property had reached the court
and it had been sent for chemical analysis. The property list
reached the court on 2.11.1998. The chemical examiner’s
report would reveal that 300 ml of wash was received by the
chemical analyst and seals on the bottles were intact and
found tallied with the sample seal provided. The percentage of
ethyl alcohol in the wash was 12.62%.
8. It is argued that without proving the possession of the
place where the materials were found, the court was not
right in arriving at a conclusion that the accused was
guilty of the offence. It is the fairly settled principle of law
that when a person is found to be in possession of wash or
liquor in a particular place, the ownership of the property is
not material to decide the question for the reason that the
offence relates to the liquor seized and not relating to the
property. Therefore, if the court accepts the evidence of PWs
1 and 2 on that point, then this argument will not last long. It
is true that the independent witnesses had turned hostile.
The hostility of the independent witnesses as observed by a
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learned Judge of this court in the decision reported in
Sivaram v. State of Kerala (1981 (1) KLT SN Page 9 Case
No.17) has become a usual practice. Then the court
considered under what circumstances, the evidence of official
witness can be accepted. The court held that the caution to
be applied is that there must be meticulous scrutiny to find
out intrinsic reliability and inherent probability of the
evidence. I have carefully scrutinized the evidence of Pws 1
and 2. They have no axe to grind against the accused. The
mere suggestion that as he failed to carry the tin as
directed by them, a false case is foisted is too difficult to
be accepted. Their evidence pin pointedly shows that when
they visited the property, they saw the present appellant
stirring the wash in a vessel. The accused has been arrested
from the spot, sample taken, produced before the court and
sent it for analysis which revealed the presence of ethyl
alcohol. I feel the chain is completed to conclude the guilt
of the accused. Therefore, I do not propose to interfere with
the conviction ordered under Section 55(g) of the Abkari Act.
9. So far as the sentence is concerned, I feel that the
court below was little harsh most probably on account of the
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social impact that will be created. The appellant is a poor
person. They were not able to find any utensil which is
normally used for the illicit distillation of the arrack from that
place. Therefore some leniency can be shown and I feel, justice
can be met by reducing the sentence to three months
imprisonment and also reducing the default sentence to one
month.
10. In the result the criminal appeal is disposed of as
follows:
1.The finding of guilt under Section 55(g) is sustained.
2. The sentence is modified and the appellant herein
namely the second accused is sentenced to undergo R.I
for 3 months and to pay a fine of Rs. One lakh and in
default to undergo further sentence for one month. He
is also entitled to set off as contemplated under Section
428 of the Cr.P.C. The lower court shall execute the
sentence.
M.N. KRISHNAN, JUDGE
cl
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