IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1126 of 2003()
1. S.SHAJI S/O. VILASINI,
... Petitioner
Vs
1. THE STATION HOUSE OFFICER,
... Respondent
2. THE STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.M.THAMBAN
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :11/06/2009
O R D E R
M.N. KRISHNAN, J.
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Crl. Appeal NO. 1126 OF 2003
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Dated this the 11th day of June, 2009.
J U D G M E N T
This appeal is preferred against the conviction and
sentence passed in S.C.243/00 of the Addl. Sessions Judge,
Adhoc-I, Kasaragod. It is the case of the prosecution that on
17.5.99 at 3.00 p.m. the accused while proceeding from
Kanhagad railway station was found to be in possession of 60
bottles of whisky containing 180 ml. in each bottle. He was
apprehended and a case was registered u/s 55(a) of the
Abkari Act. The defence is of a total denial and the court after
considering the materials had found him guilty and sentenced
him to undergo imprisonment for three years u/s 55(a) of the
Abkari Act and to pay a fine of Rs.1 lakh and in default to
undergo rigorous imprisonment for a period of six months. It
is against that decision the appeal is preferred. The points
that arise for determination in the appeal are;
(1) Whether there are sufficient materials to convict the
accused u/s 55 (a) of the Abkari Act?
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(2) Is there anything to interfere with the decision and if
so what is the quantum?
2. Heard the learned counsel for the appellant as well
as the prosecutor. The total whisky which was alleged to be
found in possession by the accused comes to 10.8 liters. It is
deposed by PW2 to the effect that he along with the Sub
Inspector and other constable were doing law and order duty
and when they reached the railway station near the place
where the vehicles were parked the accused was found with an
orange colour leather bag. On seeing the police he was in a
frightened mood and therefore the Sub Inspector of police
stopped the jeep and searched the bag and found 60 bottles of
liquor. It was boss whisky. It is also deposed by him that two
bottles were taken as samples and it was labelled and sealed.
Remaining 58 bottles were also packed and it is marked as
MO1 series. In the cross-examination also he had stated
about the incident and nothing has been brought out to
discredit his evidence. PW3 had admitted that he is a witness
to the scene mahazar and thus the existence of the same is
proved. PW4 is the Sub Inspector of police who had detected
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the case. He had deposed how they proceeded, under what
circumstances they met the accused and how the search was
conducted and seizure was done. He had also stated about
the taking of the sample and sealing it properly and also
regarding forwarding it to the court for sending it for the
chemical examiner’s report. He has been cross-examined and
he had denied the suggestion that it is a cooked up case. He
had stated that it was he who had tasted the liquid. It is also
deposed by him that the articles were sent to the Court on
22.5.99 after preparing the forwarding note on 21.5.99. The
chemical examiner’s report in this case is marked as Ext.P6 It
shows that the seal on each bottle was in tact and found
tallied with the sample seal provided. The chemical
examination revealed that it contained 40.84% by volume of
ethyl alcohol. I had also perused the seizure mahazar, Ext.P2
which clearly shows that the samples were taken and sealed in
the presence of the witnesses. It is submitted that the
independent witnesses has not been examined in this case and
therefore the matter has to be viewed with suspicion. Under
the proviso to S.36 of the Abkari Act, presence of independent
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witnesses are necessary. So far as this case is concerned there
were independent witnesses and only thing is that they had
not been examined. It is a well known fact that these
independent witnesses are rarely in the habit of supporting the
prosecution and under such circumstances it has to be
considered whether it has caused any prejudice to the
accused. A Division Bench of this court has even gone to the
extend of holding that even the absence of independent
witnesses will not vitiate the trial unless real prejudice has
been caused to the accused. Here an analysis of the evidence
would reveal that the accused was found in suspicious
circumstances with a leather bag which contained 60 bottles of
Boss whisky and proper sample has been taken and sealed
and therefore there is nothing that had caused prejudice to the
accused. So the said contention cannot be accepted.
Therefore in the light of these materials I do not want to hold
that the Court below has gone wrong in finding the accused
guilt u/s 55(a) of the Act. Therefore the conviction is
confirmed.
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3. Now coming to the question of sentence. The
learned counsel would submit that the accused is in poor
circumstances and he requires sympathy and he is not a
habitual offender and therefore some leniency should be
shown. After hearing the persuasive argument of the learned
counsel I am inclined to show leniency by reducing the
sentence to one year and the default sentence to that of three
months. The rigorous imprisonment also is altered into that of
simple imprisonment.
In the result this Crl.Appeal is disposed of as follows.
The finding of guilt u/s 55(a) of the Abkari Act is confirmed
and the sentence is modified and the accused is sentenced to
undergo simple imprisonment for a period of one year and to
pay a fine of Rs.1 lakh and on default of which he is sentenced
to undergo simple imprisonment for another three months.
The lower court shall execute the sentence. He is entitled to
set off permissible under Sec. 428 Cr.P.C.
M.N. KRISHNAN, JUDGE.
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