IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 138 of 2008()
1. SUKUMARAN S/O.RAMANKUTTY, AGED 44 YEARS,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY
... Respondent
For Petitioner :SRI.P.NOOR SEMIR
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :01/06/2009
O R D E R
M.N. KRISHNAN, J.
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CRL.A.NOs.138 & 151 OF 2008
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Dated this the 1st day of June, 2009
JUDGMENT
These appeals are preferred against the conviction and
sentence in S.C.No.323/2006 passed by the Additional Sessions
Judge/Special Judge for N.D.P.S. Act cases, Thodupuzha. The
brief facts necessary for the disposal of the appeal are stated
as follows:
2. It is the case of the prosecution that on 18..7.2002 at
about 6 p.m, the officials got reliable information that illicit
arrack was being distilled in Mattappally Teak Plantation and
therefore, they proceeded to the said place and they were able
to see two persons distilling arrack from a distance and on
their sight they attempted to run away. They were followed
and the first accused was arrested and the 2nd accused
escaped from the place. It is the further case of the
prosecution that after arresting the 1st accused, he was
taken to the farm from where they were able to find wash as
well as arrack. Arrack was found being distilled in a bottle
besides being stored in a white plastic can. In the plastic
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barrel, they were able to find 50 liters of wash and the
iron barrels contained 200 liters each filled up with wash.
According to the prosecution, samples of arrack and wash
were collected and sealed in accordance with the rules and
thereafter other liquids were seized and produced before the
court and prosecution initiated.
3. In the trial court, PWs 1 to 5 were examined,
Exts.P1 to P10 and MOs 1 to 11 were marked.
4. On analysis of the evidence, the trial court found the
accused guilty of the offences under Section 55(a) and Sections
8(1) and (2) of the Abkari Act. They were convicted and
sentenced to undergo imprisonment for a period of two years
each and to pay a fine of Rs.One lakh each. Default sentence
for non-payment of the fine was fixed as six months.
5. It is against that decision, the first accused has come
up in appeal as Crl.A.No.151/2008 and the 2nd accused has
come up in appeal as Crl.A.No.138/2008. The points that arise
for determination in these appeals are whether the trial court
has erred in arriving at a decision regarding the guilt of the
accused (2) whether there is anything to interfere with the
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quantum of punishment that has been awarded to the accused.
6. Point No.1:
This point deals with the question of the offence
committed under the provisions of the AbkariAct. It is the
case of the prosecution that the Excise Officials, on getting
reliable information, went to the teak plantation called
Mattappally and from a distance of 15 meters, they saw two
persons illicitly distilling arrack and rushed to the spot.
That two persons escaped and they were chased and the
1st accused was caught hold of. He was arrested and the
illicit arrack was seized. The sample was taken in a bottle
from the white can of arrack and the bottle and the samples
of wash was collected from the other material objects. The
accused were found in custody of 200 liters of wash in iron
barrels and 50 liters in plastic barrels. Illicit arrack was
found in a bottle and a white can. PWs 1 and 2, who were
allegedly to be the eye witnesses for the seizure, turned
hostile and therefore nothing could be elicited from them to
support the case of the prosecution. PW3 is the Preventive
Officer of the Excise Range Office, Kattappana and he had
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given the details. He had spoken about the way in which they
proceeded to Mattappally Teak Plantation, how the accused
were found and how the first accused was apprehended and
also about the factum of the escape by the 2nd accused. He
has clearly deposed that illicit arrack was collected in a
bottle from the material objects used for the distillation of the
arrack. He was able to find 50 liters of brownish liquid,
which was wash, and he had also spoken about the collection
of wash in other barrels as well. It is also his version that in
the white can there was illicit arrack . According to him,
since the bottle and the white can contained illicit arrack,
they were mixed up and sample was taken and so far as
brownish liquid wash is concerned, it was taken from other
containers.
7. Learned counsel for the accused had brought to my
notice the improvements given by the witnesses at the time
of cross examination. In Ext.P1, there is no statement to the
effect that they had understood that A1 and A2 were distilling
illicit arrack. But in cross examination, he would say that he
has known about it. Similarly, it is also stated that how he had
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sealed the bottles. It has to be understood that the first
statement recorded or the mahazar prepared cannot be
treated as an encyclopedia of all the materials relevant for
the purpose of determination of a criminal case. These are all
acts done by the officials in the official capacity and he has
explained in his evidence that though he knew that A1 and
A2 were the persons found distilling, since it was not
confirmed, he did not write it at that time. So far as
sampling and sealing is concerned, these are official acts
which done by the persons. It has also to be remembered
that there was no delay in producing the same before the
court with the forwarding note and the chemical analysis
report also would show that the seal was intact at the time of
receiving for the purpose of chemical analysis. A reading of
the evidence of PW3 inspires confidence in me to believe the
same and it need not be simply brushed aside for the
reasons that they are official witnesses. PW3’s evidence is
cogent and clear and therefore, I do not find any ground to
discard that evidence just because independent witness had
turned hostile, it will not improve the case of the accused.
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8. PW4 is the Assistant Excise Inspector, who had deposed
about the way how he had produced the material objects, the
accused and the documents before the court. He had also
spoken about the forwarding note which is marked as Ext.P9.
The seizure was on 18.7.2002 and the samples and the
accused were produced before the court on 19..7.2002 itself.
So, there is no much delay at all in producing the accused as
well as the material objects in the case.
9. PW5 is the Excise Range Inspector of Kattappana. He
had spoken about the receipt of the chemical analysis report,
which is marked as Ext.P10. It shows that it contains
alcohol. Evidence of PWs 3 to 5 shows about the detection
and finding out of the distillation of illicit arrack and
therefore, I do not find any illegality committed by the court
below in arriving at a decision that the accused have
committed the offences punishable under Section 55(a) and
Sections 8(1) and (2) of the Abkari Act.
10. Point No.2:
Now the next question is regarding the sentence.
Learned counsel for the appellant very persuasively submitted
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before me that they are undergoing imprisonment from
31.12.2007 and besides that they had also undergone remand
during the trial stage and therefore, the court should show
some leniency. The first accused had submitted before the
court that he has a wife, children and the old mother to be
looked after and the second accused had stated that he had
not committed the offence at all. The accused are aged 44
years each and there is nothing before this Court or the court
below to show that they have criminal backgrounds on
previous occasions. Therefore, taking into consideration the
totality of the facts and circumstances, I feel that some
leniency can be shown whereby the sentence of imprisonment
can be reduced to a period of one year each coupled with the
fine of Rs.One lakh and in default, to undergo S.I for a period
of six months.
11. In the result these criminal appeals are disposed of
as follows:
(1) Finding of guilt under Section 55(a) and Sections 8
(1) and (2) of the Abkari Act are sustained.
(2) The conviction and sentence passed by the court
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below is modified and the accused are directed to undergo
imprisonment for a period of one year each for the offence
committed under Section 55 (a) and Sections 8(1) and (2) of the
Abkari Act. They are also directed to pay a fine of Rs.One
lakh each and in default, to undergo S.I for a period of six
months. They are also entitled to set off for the remand
period they had undergone during the trial stage. I make it
clear that the set off can be given to the person, who had
undergone pre-trial remand.
M.N. KRISHNAN, JUDGE
cl
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