IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 1152 of 2007()
1. SASI KUMAR, C.NO.1614,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :BANI P.[STATE BRIEF]
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.THANKAPPAN
Dated :04/10/2007
O R D E R
K. Thankappan, J.
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Crl. A. No. 1152 of 2007
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Dated this the 4th day of October, 2007
JUDGMENT
Appellant challenges the judgment in S.C.No.686/2003 on the file
of the Court of the Addl. District and Sessions Judge (Adhoc) Court-I,
Kollam. By the impugned judgment the appellant was found guilty under
section 55(a) of the Abkari Act and he was convicted thereunder and
sentenced to undergo rigorous imprisonment for two years and to pay fine of
Rs.1,00,000/- and in default to undergo simple imprisonment for a period of
six months. As per the evidence of PWs.1 and 2, Excise Inspector and
Preventive Officer respectively, the appellant was found in possession of
five litres of arrack. In Ext.P1 mahazar it is recorded that the appellant was
found in possession of 5 litres of arrack in MO1 can. MO1 can was seized
from the appellant, sample was taken and the same was labelled and sealed
in the presence of PWs.3 and 4 independent witnesses. The trial court found
that the prosecution had succeeded in proving that the appellant was found
in possession of five litres of arrack in violation of the provisions of the
Abkari Act.
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2. The contention of the learned counsel for the appellant is that the
trial court ought not have placed reliance on PWs.1 and 2, the official
witnesses, as PWs.3 and 4 independent witnesses were turned hostile to the
prosecution. The further contention is that there are contradictions in the
evidence of PWs.1 and 2 regarding the sample taken. PW1 stated that the
bottles were taken from the shop, whereas PW2 had stated that the bottles
were already in the jeep. Lastly it is contended that in the light of decisions
reported in Surendran V.State of Kerala (2004(1) KLT 404 and Sudhepan
@ Aniyan V. State of Kerala (2005(2) KLT (Cri) 631) , the finding of the
trial court that the appellant had committed an offence punishable under
section 55(a) of the Abkari Act is not tenable.
3. The trial court mainly relied on the evidence of PWs.1 and 2 to
find the appellant guilty under section 55(a) of the Abkari Act. The trial
court has also relied on the evidence of PW5 Excise Inspector who
continued the investigation and filed the final charge. Though the appellant
had set up a case in his 313 statement that the case was foisted against him,
his case has not been considered by the trial court. The first contention
raised by the appellant is that the trial court has committed serious error in
accepting the evidence of PWs.1 and 2 , as the independent witnesses were
turned hostile to the prosecution. There is no legal bar to prove the case
Crl.A.1152/07 3
through the evidence of official witnesses, if their evidence is free from any
infirmity. PWs.1 and 2 had given evidence before the court that the
appellant was found in possession of MO1 can which contained 5 litres of
arrack. Though these witnesses were cross-examined at length, their
evidence has not been shattered. The case suggested by the appellant that
the case was foisted against him is also not sustainable, as the evidence of
PWs.1 and 2 would prove that the appellant was found in possession of five
litres of arrack. Evidence of Pws.3 and 4 would show that they were
signatory of Ext.P1 mahazar. As per Ext.P5 report, the sample contained
49.52% of ethyle alcohol by volume. In the above circumstances, this Court
is of the view that the trial court is fully justified in relying on the evidence
of PWs.1 and 2.
4. Next question to be considered is that as per the principle laid
down in Surendran’s case (Supra) and Sudhepan’s case (Supra), the finding
of the trial court that the appellant committed an offence punishable under
section 55(a) of the Abkari Act is not sustainable. In In Surendran ‘s case
(Supra) a Division of this Court held that when a person is in “possession
of illicit liquor” while illegally importing it, the case would be covered
under section 55(a) of the Abkari Act and in a case where the possession is
of illicit liquor the case would fall within section 58 of the Abkari Act. In
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Sudhepan @ Aniyan (Supra) this Court held that under section 55(a) the
prosecution must allege and prove that possession of the contraband liquor
was incidental or in connection with export, import, transport or transit of
liquor. As per the provisions of the Abkari Act, the prosecution should
prove that the article was found in possession of the accused was in
connection with export, import, transport or transit of liquor. In the light of
the above, this Court is of the view that the finding of the trial court that the
appellant had committed an offence punishable under section 55(a) of the
Abkari Act is not sustainable. After considering the entire evidence, the
trial court found that the prosecution had proved that the appellant was
found in possession of five litres of arrack.. The prosecution in this case has
not proved that the possession of the contraband article was incidental or in
connection with export, import, transport or transit of liquor. Section 8(1) of
the Abkari Act deals with prohibition of manufacture, import, export,
transport, transit, possession, storage, sales, etc. of arrack. As per section 8
(1) of the Abkari Act, no person shall manufacture, import, export,
transport, without permit transit, possess, store, distribute, bottle or sell
arrack in any form. Hence, offence under section 8(1) and (2) of the Abkari
Act is, therefore, attracted in the facts and circumstances of this case.
Therefore, the appellant is found guilty under section 8(1) of the Abkari
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Act, punishable under section 8(2) of the Abkari Act .
5. The next question to be considered is with regard to the sentence
awarded against the appellant. The possession of arrack in contravention of
the Act or of any rule or order made under the Act shall not be encouraged
by giving smaller punishment. However, the fact that the incident happened
during the year 1998 and the fact that the possession of arrack is five litres,
this Court is of the view that sentence of rigorous imprisonment for two
years and to pay a fine of Rs.1,00,000/- and in default of payment of fine to
undergo simple imprisonment for six months under section 8(2) of the
Abkari Act will meet the ends of justice. Hence, the appellant is sentenced
to undergo rigorous imprisonment for two years and to pay a fine of
Rs.1,00,000/- and in default of payment of fine to undergo simple
imprisonment for six months. Benefit under section 428 Crl.P.C. is entitled
to the appellant.
With the above modification, the appeal is dismissed.
K. Thankappan,
Judge.
mn
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K. Thankappan,J.
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Crl.A. No. 1152 of 2007
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Judgment
4-10-2007