IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 726 of 2009(A)
1. SABU, C.NO.3360,
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :MANSOOR.B.H[(STATE BRIEF)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :21/12/2009
O R D E R
V. RAMKUMAR , J.
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Crl. A No. 726 of 2009
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Dated this the 21st day of December, 2009.
JUDGMENT
In this appeal preferred from the Central Prison,
Thiruvananthapuram the appellant (Sabu) who was the accused
in S.C. No. 459 of 2007 on the file of the Additional Sessions
Court (Adhoc -II), Thodupuzha, challenges the conviction entered
and the sentence passed against him for an offence punishable
under Section 8(2) of the Kerala Abkari Act.
2. The case of the prosecution is that on 30.06.2007, at
about 8.10 p.m., on the road near the Christian Church at
Murikkattukudy in Kozhimala Kara of Idukki District, the
accused was found selling illicitly distilled arrack in
contravention of the provisions of the Abkari Act and he has
thereby committed an offence punishable under Section 8(2) of
the Abkari Act.
3. On the appellant pleading not guilty to the charge
framed against him by the court below for offences punishable
under Sections 8(2) and 55(i) of the Abkari Act, the prosecution
was permitted to adduce evidence in support of its case. The
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prosecution altogether examined 4 witnesses as P.Ws 1 to 4 and
got marked 6 documents as Exts. P1 to P6 and 3 material
objects as MOs.1 to 3.
4. After the close of the prosecution evidence, the
accused was questioned under Sec. 313 (1)(b) Cr.P.C. with
regard to the incriminating circumstances appearing against him
in the evidence for the prosecution. He denied those
circumstances and maintained his innocence.
5. The court below did not record an order of acquittal of
the appellant under Section 232 Cr.P.C. The appellant did not
adduce any defence evidence when called upon to do so.
6. The learned Addl. Sessions Judge, after trial, as per
judgment dated 23.10.2008 acquitted the appellant of the
offence punishable under Section 55(i) of the Act, but convicted
him of the offence punishable under Section 8(2) of the Abkari
Act. For the said conviction, he was sentenced to rigorous
imprisonment for two years and to pay a fine of Rs.1,00,000/-
and on default to pay the fine, to undergo simple imprisonment
for six months. It is the said judgment which is assailed in this
appeal preferred from the Central Prison, Thiruvananthapuram.
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7. I heard Adv. Shri. Mansoor B.H., the learned counsel
appearing for the appellant on State Brief and the learned Public
Prosecutor, Shri. B. Jayasoorya.
8. The only point which arises for consideration in this
appeal is as to whether the conviction entered and the sentenced
passed against the appellant are sustainable or not.
9. The point:-
PWs 1 to 3 are the independent witnesses cited by the
prosecution to prove the detection, search and seizure. These
witnesses turned hostile to the prosecution. PW4, the Sub
Inspector of Police, Kattappana was the Detecting Officer. His
evidence is to the following effect:-
10. On 30.06.2007, PW4 along with his police party was
conducting law and order patrol duty at places called Kanjiyar,
Murikkattukudy etc. While the police party reached the
southern side of the cemetery of the Christian Church at
Murikkattukudy, he got a credible secret information to the
effect that a person by name Sabu of Karappara House was
engaged in the illicit sale of arrack. Accordingly, PW4 along
with his police party proceeded to the said spot at about 7.50
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p.m. On reaching the said spot, they came across the appellant
holding a white jerry can of 5 litre capacity in one hand and a
glass tumbler in the other. The appellant was restrained and the
liquor found in the jerry can was tested by smelling and tasting
the same to find that it was arrack. The total volume of arrack in
the can was found to be about 3 litres. After drawing two
samples each of 180 ml. in two separate bottles and sealing the
same, PW4 arrested the accused and seized the contraband
liquor and the sample bottles under Ext.P1 mahazar to which
PWs 1 to 3 had affixed their signatures. The appellant along
with the properties and the seizure documents were then taken
to the Kattappana Police Station from where PW4 registered a
case as Crime No. 380 of 2007 under Section 8(2) of the Abkari
Act. Ext.P4 property list shows that the properties along with
the samples were produced before the Judicial First Class
Magistrate, Kattappana on 09.07.2007. The sample bottles were
in a sealed condition on the date of their production. During the
course of investigation, PW4 submitted the original of Ext.P5
forwarding note requesting the forwarding of one sample bottle
to the Chemical Examiner for analysis. The said request was
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complied with by the Magistrate by forwarding one sample bottle
along with his covering letter dated 07.08.2007 to the office of
the Chemical Examiner, Ernakulam. The sample was received by
the Chemical Examiner with the seals-in-tact. On analysis, the
sample bottle was found to contain 35.22 percent by volume of
ethyl alcohol.
11. The learned counsel appearing for the appellant
submitted that since all the three independent witnesses to the
detection, search and seizure turned hostile to the prosecution
and also since there is only the interested testimony of the
Detecting Officer examined as PW4, it will be unsafe to convict
the appellant.
12. I am afraid that I cannot agree with the above
submission. It is true that the independent witnesses to the
Mahazar had turned hostile to the prosecution. But, such
disloyalty shown by independent witnesses is not uncommon to
the courts trying such offenders. (vide Sivaraman v. State of
Kerala – 1981 KLT SN 9). The testimony of PW4 is free from
any doubt or blemishes. No sort of enemity or oblique motive
has been attributed to PW4. Hence, his evidence regarding the
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detection, search and seizure, is quite credible. The very fact
that MO3 glass tumbler was seized from the appellant along with
MO1 jerry can containing the bulk quantity of arrack as
confirmed in Ext.P6 report, shows that the appellant was
possessing the arrack for the purpose of sale. By virtue of
prohibition contained in Section 8(1) of the Abkari Act, it was not
permissible for the appellant to possess or carry arrack,
whatever may be its quantity, since arrack has been totally
banned in the State with effect from 03.06.1997. Hence, the
court below was fully justified in recording an order of conviction
under Section 8(2) of the Abkari Act and the same is hereby
confirmed.
13. What now survives for consideration is the adequacy or
otherwise of the sentence imposed on the appellant. The court
below has imposed a sentence of rigorous imprisonment for two
years and to pay a fine of Rs.1,00,000/-. As observed earlier,
arrack has been banned in the State with effect from 03.06.1997.
There was, therefore, absolutely no justification for the appellant
to carry any quantity of arrack. Here, he was found to carry
three litres of arrack and the fact that MO3 glass tumbler was
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seized from him shows that it was evidently intended for sale
which is prohibited under Section 8(1) of the Abkari Act. It was
noticing that this liquor has deleterious effect on the human
system, besides breaking so many families, that the Government
imposed the total ban on arrack in the State with effect from
03.06.1997. Having regard to the adverse effect of the drink on
human beings and also having regard to the fact that the offence
is punishable up to 10 years of imprisonment and a fine of Rs.2
lakhs, I am not persuaded to hold that the sentence imposed on
the appellant is excessive or disproportionately harsh.
Accordingly, the sentence imposed on the appellant is also
hereby confirmed.
In the result, this appeal is dismissed confirming the
conviction entered and the sentence passed against the
appellant.
Dated this the 21st day of December, 2009.
V. RAMKUMAR, JUDGE.
rv
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V. RAMKUMAR, J.
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Crl. Appeal No. 726 of 2009
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21st day of December, 2009.
JUDGMENT
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