IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 1553 of 2005()
1. RAJAN, S/O.KRISHNAN,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.VINOY VARGHESE KALLUMOOTTILL
For Respondent : No Appearance
The Hon'ble MR. Justice K.THANKAPPAN
Dated :06/03/2007
O R D E R
K. THANKAPPAN, J.
--------------------------------------
Crl.A.NO.1553 OF 2005
---------------------------
Dated this the 6th day of March, 2007.
JUDGMENT
The appellant faced trial for the offence punishable under
Section 8(1) read with 8(2) of the Abkari Act. The prosecution
allegation against the appellant is that he was found in
possession of 20 packets of arrack each contained 150 ml on
31.3.1999 at a place called Mithrapuram near Udayagiri
temple in Meloodu Kara without having any licence or permit
under the provisions of the Abkari Act and Rules. To prove
the case against the appellant, the prosecution examined
Pws 1 to 5 and produced Exts.P1 to P7. The prosecution
also produced MO1 series. After the closing of the
prosecution evidence, the appellant was questioned under
Section 313 of the Code of Criminal Procedure. Denying the
allegations levelled, the appellant had stated that the case
was foisted against him. The appellant was arrested from his
house on 30.3.1999. To prove the above case of the
appellant, he had examined one witness as DW1. However,
on considering the evidence adduced by the prosecution, the
CRL.A.NO.1553/205 2
trial court found that the appellant guilty under Section 8(1)
read with Section 8(2) of the Abkari Act and he was convicted
thereunder and sentenced to undergo R.I for three years
and to pay a fine of Rupees One lakh and in default of
payment of fine, a further period of two years simple
imprisonment was also ordered. Against that conviction and
sentence, this appeal is filed.
2. This Court heard the learned counsel appearing for the
appellant and the learned Public Prosecutor. The learned
counsel appearing for the appellant submits that the trial
court went wrong in placing reliance on the prosecution
evidence to find the appellant guilty of the charge. The
counsel also submits that the trial court ought to have
considered the case of the appellant on the basis of the
suggestions made to the witnesses. Pws 1, 2, 4 and 5 are the
Excise Officials. PW3 is an independent witness, who was
examined to prove that the appellant was arrested at the
place and date as alleged by the prosecution. However, he
turned hostile to the prosecution. Hence, the trial court
considered the evidence of Pws 1, 2 and 4 out of whom PW1 is
CRL.A.NO.1553/205 3
the Preventive Officer, who detected the crime. He had given
evidence before the court that on 31.3.1999 while himself
and his companions, Excise Officials, were on patrol duty and
when they reached near the house of one Narayanan Nair at
Mythrapuram, near Udayagiri Temple road, they have seen
that the appellant is walking towards them holding a plastic
cover in his hand. This witness has further stated that on
seeing the Excise Officials, the appellant tried to escape from
the scene. He was waylaid and on questioning it is revealed
that the plastic cover contained 20 packets of arrack each
contained 150 ml. On preparing Ext.P1 mahazar, the said
plastic cover was recovered and one of the packets was
taken. It is revealed that the packet contained arrack and
thereafter PW1 had taken sample from the packet which he
had taken from the plastic cover. Further this witness has
stated that he had also prepared Ext.P2 arrest memo and
giving information to the wife of the appellant, appellant was
arrested at the spot. This witness has also stated that the
contraband article and the sample seized under Ext.P1
mahazar were produced before the court on the same day.
This witness has further stated that investigation of the case
CRL.A.NO.1553/205 4
was continued by Pws 4 and 5 and finally on the basis of
Ext.P7 chemical report, a charge was laid before the court
against the appellant. PW2 is another Preventive Officer,
who accompanied PW1 at the time of detection of the crime
and this witness had given evidence in full support of PW1.
He had also stated that the appellant was arrested and the
contraband article was seized from the appellant and sample
was taken. He justified the action followed by PW1. This
witness has further stated that presence of PW3, an
independent witness, was also there at the spot when PW1
detected the crime. Evidence of Pws 4 and 5 is that they
had continued the investigation of the case and on the basis
of Ext.P7 chemical report it is found that the sample
contained arrack and finally charge has been laid before
the court.
3. The trial court had found that the prosecution
succeeded in proving that the appellant was arrested at the
place and time as alleged by the prosecution and MO1
plastic cover was seized from the appellant and the same
was also taken for analysis. On the above evidence, the trial
court found the appellant guilty under Section 8(1) read with
CRL.A.NO.1553/205 5
8(2) of the Abkari Act.
4. After considering the entire prosecution evidence and
the contention of the learned counsel appearing for the
appellant, this Court is of the view that the findings entered
by the trial court are on evidence and require no interference.
With regard to the sentence, the learned counsel contended
that some leniency may be shown to the appellant.
Considering the entire facts proved by the prosecution, this
Court is not inclined to interfere with the substantive
sentence already awarded by the trial court. However, the
sentence imposed on default of payment of the fine shall be
reduced to six months instead of two years.
With the above modification of the sentence, in all
other respects the appeal stands dismissed.
K. THANKAPPAN, JUDGE.
cl
CRL.A.NO.1553/205 6