Appellant challenges conviction by the court below in Sessions Case No.258/2001 on the file of the Additional Sessions Court (Adhoc-I), Pathanamthitta for an offence punishable under Section 8 of the Abkari Act. Even though initially he was charged for offences punishable under Section 55(a) and 8 of the Abkari Act, the trial court convicted the appellant only under Section 8 of the Abkari Act.
2. Heard the learned counsel for the appellant and the learned Public Prosecutor.
3. Prosecution case in short is that on 25-04-1998 at about 6.00 p.m., while the Preventive Officer (PW1) and party were on patrol duty, they found the appellant walking through the road in front of an L.P School carrying a black plastic bag. On seeing the Excise Officers, the appellant was perplexed and attempted to retreat. Feeling suspicion, PW1 restrained the appellant and examined the bag in his possession. It was found that he possessed 20 polythene sachets with 150 ml of arrack in each sachet.
4. Court below examined six witnesses and marked six documents on the side of the prosecution. MO1 series are the material objects. There was no defence evidence.
5. Ext.P1 is the mahazar prepared by PW1 immediately after detection of the offence. It was proved through PW1. Ext.P2 is the arrest memo prepared by PW1. Similarly, he prepared Ext.P3, the crime and occurrence report also. He was produced before the court with Ext.P4 remand application. Ext.P5 property list, prepared by PW5 was produced before the court without any delay. Ext.P6 is the chemical examination report showing that the accused possessed arrack.
6. PW's 1 to 4 are cited by the prosecution to prove the incident. PW's 1 and 2 are the Preventive Officers. PW's 3 and 4 are the independent witnesses. PW's 1 and 2 supported the prosecution case. In spite of cross examination, there is no dent or discredit made in the evidence adduced by them. The independent witnesses cited by the prosecution failed to support the prosecution. Oral evidence coupled with documents prepared contemporaneous to the detection show that the appellant is guilty of the offence. On going through the materials on record, I find no reason to disturb the conviction of the appellant.
7. Learned counsel for the appellant submitted that he was aged 71 years at the time of trial. Now he is 81 years. The court below in its judgment considered the fact that the appellant was an old man even at the time of trial. Records show that the appellant was arrested on 25-08-1998 and was released on bail on 12-05-1998. After conviction, he was sent to prison on 17-04-2004 and was released only on 17-05-2004 as per the direction of this Court. It is seen that he has undergone detention for about 47 days in connection with this case. Considering the age of the appellant, I find that some leniency can be shown in the matter of sentence.
In the result, the appeal is partly allowed. Conviction of the appellant under Section 8 of the Abkari Act is confirmed. He shall undergo simple imprisonment for a period of six weeks. As the records revealed that he had already undergone pretrial detention for 47 days, he shall be released forthwith, if not wanted in any other case. The fine imposed by the court below on the appellant is maintained. The court below shall take steps to realise the fine. In default of payment of fine, he shall undergo simple imprisonment for a period of one month. With this modification, the Crl. Appeal is disposed of.
All pending interlocutory applications will stand dismissed.
amk A.HARIPRASAD, JUDGE.