SASI v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931** **CRL.A.No. 341 of 2003(A)** **--------------------------------SC.284/1999 of ADDL. SESSIONS COURT (ADHOC I), KOZHIKODE ............................................** ## **APPELLANT(S): ACCUSED** **-------------------------------------** **SASI, S/O.KANNAN, CHERIPPERI MEETHAL(H) KALPATHUR AMSOM, VALYAKODE DESOM, KOYILANDY TALUK.** **BY ADV. SRI.MOHANAN V.T.K.** ## **RESPONDENT(S): COMPLAINANT** **------------------------------------------------** **STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. EXCISE RANGE OFFICER, BALUSSERY.** **PUBLIC PROSECUTOR SRI.C.M.NAZAR.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/08/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 341 OF 2003 = = = = = = = = = = = = = = = Dated this the 3[rd] day of August, 2009.** ## **J U D G M E N T** This appeal is preferred against the conviction and sentence passed by the Addl. Sessions Judge, Adhoc-I, Kozhikode in S.C.284/99. The accused was charge sheeted for the offence u/Ss. 55(a) of the Abkari Act and he was convicted and thereafter sentenced to imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for a period of six months. 2. It is the case of the prosecution that on 28.10.97 when PW1 was on patrol duty the accused was found in a suspicious circumstance. He was intercepted and examined and it was found that he was carrying a Can which contained 1½ liters of illicit arrack. On smell and taste it was confirmed that it was illicit arrack. Thereafter sample was taken, accused was arrested and produced before Court and later proceedings were initiated. PWs.1 to 6 were examined and Exts.P1 to P11 and D1 and MO1 were examined. ## **Crl.A. 341 OF 2003** -2- 3. The points that arise for determination in the appeal are, (1) Whether the accused has committed offence u/s 55 (a) of the Abkari Act? (2) If not, whether he has committed any other offence? (3) In case of guilt, is the sentence excessive? ## **Points:** 4. Heard the learned counsel for the appellant as well as the Prosecutor. Learned counsel for the appellant very strongly contends before me that the materials available are not sufficient to connect the accused with the crime and that no independent witnesses had been examined and that a charge u/s 55(a) will not lie and there had been some delay in getting the chemical analyst's report. 5. So far as the facts of the case are concerned the evidence is that of PWs.1 and 2. PW1 was the person who conducted the search of the accused. He had deposed before Court that while they were on patrol duty the accused was found in suspicious circumstances with a Can and therefore he was intercepted and the liquid on smell and taste was found to **Crl.A. 341 OF 2003** -3- be illicit arrack. Thereafter sample was taken in 180 ml bottle and it was sealed and the accused was arrested. He had been cross examined at length and nothing is brought out to discard his evidence except for the fact that affected person in and around had not been chosen as witnesses for the seizure. PW2 is another officer who had accompanied PW1. He had also spoken in line with the evidence of PW1 and there also nothing is brought out to discard his evidence. The independent witnesses had turned hostile to the prosecution. 6. A learned Judge of this Court in the decision reported in _**Sivaraman v. State of Kerala (1981 KLT S.N. Case No.17 page 9)**_ held that it has become a habit for the independent witnesses to turn hostile for reasons best known to them. The learned Judge then considered whether the evidence of official witnesses can be considered. The Court stated that while appreciating or accepting the evidence of official witnesses what is to be done is that it must be put to strict and meticulous scrutiny to find out the intrinsic reliability and inherent probability of the evidence so tendered. After considering the evidence of PWs.1 and 2 I find that they have no axe to grind against the accused and their evidence is **Crl.A. 341 OF 2003** -4- intrinsically reliable and trustworthy. So the turning of the independent witnesses hostile will not affect the case of the prosecution. 7. The next point is regarding the procedural formalities. Sample was taken in the presence of the accused and it was labeled. It was produced before the Court on the next day, i.e. 29.10.97 and the Court had received the same. The Court has passed an order for sending it for chemical analysis and it had been done. The chemical analysis report further would reveal that the seal on the bottle was in tact and found tallied with the sample seal provided. It also proved that the sample liquid contained 43.74% by volume of ethyl alcohol. So it can be seen that the liquid seized from the accused was illicit arrack and that it was properly sampled and sealed and sent for chemical examination and was found to be contained ethyl alcohol. So that aspect also does not suffer from any illegality or irregularity. 8. The next point argued by the learned counsel is that an action u/s 55(a) will not lie. In support of the said contention he has relied upon the decision of this Court reported in _**Mohanan v. State of kerala 2007 (1) KLT 845.**_ **Crl.A. 341 OF 2003** -5- The Division Bench of this court held that S.55(a) deals with only illegal import, export or transport, transit etc. on such import or export. It is made clear that S.55(a) is applicable only if persons illegally imports or transport liquor or in possession of liquor while illegally importing. 9. The accused was found to be in possession of 1½ litres of arrack and therefore one cannot hold that there was exporting or importing or transporting and further that possession was while illegally transporting. So an action u/s 55(a) will not lie. Therefore the learned counsel would contend that the accused is entitled to an acquittal. I am afraid that I cannot jump to such a conclusion for the reason that there is another provision which is parallel to S.55(a) and that is S.58 of the Abkari Act. Mere possession is an offence u/s 58 of the Abkari Act. S.58 states that if a person is in possession of any liquid prohibited by law, S.58 will be attracted. By any stretch of imagination it can be be termed as a conscious possession which attract S.58 of the Abkari Act. When a charge is laid u/s 55(a) of the Abkari Act whether a conviction can be had u/s 58 of the Abkari Act was also a point that came up for consideration before the learned judge of this **Crl.A. 341 OF 2003** -6- Court in appeal. In _**(2007 (1) KLN SN 42 case No.58 (Shaji v. State of Kerala)**_ this Court was considering a very similar question where charge was framed u/s 55(a) and conviction was done u/s 58 of the Abkari Act. This Court held that when the appellant was charged u/s 55(a) of the Abkari Act, he was found guilty u/s 58 of the Abkari Act. Though the above sections are dealing with different offences nature of punishment to be awarded is one and the same. Unless and until it is proved by the appellant that it has caused prejudice by awarding punishment u/s 58 of the Abkari Act, the Court is not expected to interfere with the conviction and sentence awarded u/s 58 of the Abkari Act. Therefore I also sustain the view that S.58 can be attracted and conviction can be had thereunder. The points are answered accordingly. 10. Now turning to the question of sentence. The possession of illicit arrack is 1½ liters. The accused has to look after his wife, child and mother. It is submitted that he is under very poor financial circumstances as well. In order to strike social balance it is necessary to impose a reasonable punishment only. Therefore I reduce the sentence of imprisonment to three months and also reduce the default ## **Crl.A. 341 OF 2003** -7- sentence to a period of two months. In the result the Crl.Appeal is disposed as follows: - 1) The finding of conviction and sentence u/s S.55(a) of - the Abkari Act is set aside. 2) The accused is found guilty u/s 58 of the Abkari Act and convicted thereunder and is he is directed to undergo simple imprisonment for a period of three months and to pay a fine of Rs.1,00,000/- and in default to undergo imprisonment for a period of two months. (3) He is also entitled to set off as contemplated under S.428 Cr.P.C. - (4) The lower Court shall execute the sentence. ## **M.N. KRISHNAN, JUDGE.** ul/- ## **Crl.A. 341 OF 2003** -8- **M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 341 OF 2003 = = = = = = = = = = =** **==> picture [136 x 10] intentionally omitted <==** **3[rd] August, 2009**