This appeal is directed against the judgment of conviction entered against and the sentence imposed on, the appellant/accused by the Court of Additional Sessions Judge Fast Track (Adhoc-I), Alappuzha in S.C.No.535 of 2002 for the offences under Sections 8(1) & (2) and 55(a) of the Abkari Act. The appellant herein was the sole accused therein. He was tried and found guilty of the offences under Sections 8 (1) & (2) and 55(a) of the Abkari Act. The case of the prosecution is as follows:- On 15.12.1999 at about 7 p.m. while PW2, the Assistant Excise Inspector then attached to the Excise Range Office, Karthikappally and party were on patrol duty they saw the accused coming from the opposite direction through Cheppad road lying in front of the house of Puthen Madothil Gevarghese located near Panachamood junction. The demeanour of the appellant at the sight of the excise party created suspicion on them and hence, he was intercepted. Upon search of his body in the presence of witnesses, one bottle of 750ml.
containing a liquid was found from the tucking of the cloth at his waist. Upon smelling and tasting it was identified as contraband spirit diluted with water. He was arrested under Ext.P2. Out of the liquid contained in MO1 bottle a sample of 200ml. was taken in a bottle having a capacity of 375 ml. and the said bottle and also MO1 bottle with residue were sealed and labels containing a brief description of the case were affixed on them in accordance with the procedure and Ext.P1 mahazar was prepared. The appellant and the seized articles were taken to the Excise Office and Crime No.75 of 1999 of Karthikappally Excise Range was registered. The sample sent for analysis to the Laboratory was found to have contained 26.24% by volume of ethyl alcohol. After completing the investigation final report was filed before the Court of Judicial First Class Magistrate, Kayamkulam alleging commission of offence punishable under Section 55 (a) of the Abkari Act (for short `the Act'). Since it was triable by a Court of Sessions it was committed to the Sessions Court, Alappuzha and subsequently it was made over for trial and disposal to the Principal Assistant Sessions Court, Alappuzha. The Principle Assistant Sessions Judge framed charge against the accused for the offence punishable under Section 55(a) of the Act and it was read out and explained to the appellant. The appellant pleaded not guilty to the charge and claimed to be tried. Later, the case was withdrawn from there and was transferred to the Court of Principal Additional Sessions Judge, Fast Track (Adhoc-I), Alappuzha. To prove the charge the prosecution has examined PWs 1 to 4 and got marked Exts.P1 to P6. MO1 and MO2 were also identified.
After closing the prosecution evidence the appellant herein was questioned under Section 313 Cr.P.C. and he denied all the incriminating circumstances put to him. Additionally, he stated that on 15.12.1999 he was returning home carrying two ducks and vinegar and the Excise Inspector stopped the jeep near him and took the bottle carried by him. He also told the Excise Inspector that the bottle contained vinegar. He was then taken to the Excise Office and the case is foisted against him. Finding that the appellant was not entitled to be acquitted under Section 232 Cr.P.C. he was called upon to enter on his defence. However, the appellant did not adduce any evidence in defence. After hearing the arguments on both sides and carefully considering the evidence on record the trial court arrived at the conclusion that the prosecution has succeeded in proving conclusively the guilt of the accused punishable under Section 55(a) of the Act and accordingly convicted him thereunder. The appellant was sentenced to undergo simple imprisonment for one year and to pay a fine of `1,00,000 (Rupees One lakh only). In default of payment of fine he was ordered to undergo simple imprisonment for one year more. Hence, this appeal.
2. I have heard the learned counsel for the appellant and also the learned Public Prosecutor.
3. The learned counsel appearing for the appellant contended that it is the utter, perverse appreciation of the evidence on record that culminated in the conviction of the appellant. The material contradiction in the oral testimonies of PWs 2 and 3 were brushed aside, it is contended. PW1, the independent witness had turned hostile to the prosecution. That apart, there was no proper identification of the contents in MO1 inasmuch as PW2 deposed to the effect that it contained spirit diluted with water and PW3 deposed that it was arrack. It is contended further that the trial court went wrong in finding that the prosecution has succeeded to prove conclusively that the MO1 contained spirit diluted with water having contents of 26.24% by volume of ethyl alcohol and thereby the appellant committed an offence punishable under Section 55(a) of the Act. Per contra the learned Public Prosecutor contended that the evidence of PWs 2 and 3 would conclusively prove that MO1 bottle containing spirit diluted with water was seized from him and they were properly sealed and labelled and the sample collected therefrom on analysis found to have contained 26.24% by volume of ethyl alcohol. It is also contended that the defence has not elicited anything to discard the evidence of PWs 2 and 3. It is also stated that during the 313 examination the appellant himself submitted that on that day and at the time mentioned in Ext.P3 he was returning home holding two ducks and vinegar. However, he did not adduce any further evidence to establish that he had purchased vinegar and that he was holding only vinegar at that point of time. In the said circumstances, it is contended that the finding of the learned Additional Sessions Judge that the prosecution has succeeded in establishing the charge against the appellant/accused is the right conclusion based on the evidence on record, it is submitted. In such circumstances, no appellate interference is called for, it is contended.
4. Ext.P1 is the mahazar prepared for the seizure of MO1 containing the contraband liquid and Ext.P2 is the arrest memo whereunder the appellant was arrested. The evidence of PW1, though turned hostile, is to the effect that he signed in Exts.P1 and P2. PW2 is the detecting officer and he was the then Assistant Excise Inspector attached to the Excise Range Office, Karthikappally. He would depose that on 15.12.1999 at about 7 p.m. he searched the body of the accused. Evidently, in the 313 examination the appellant would admit those facts. PW2 further deposed that upon searching the body of the appellant he recovered MO1 bottle containing spirit diluted with water under Ext.P1 seizure mahazar and he attested it and also got it attested by witnesses. PW1 the independent witness would admit his signature in Ext.P1 mahazar. PW2 also deposed that after preparing Ext.P2 arrest memo he arrested the accused along with the contraband spirit and registered C.R.No.75 of 1999 after bringing the appellant-accused and the contraband article to the Excise Range Office. The crime and the occurrence report along with the thondi list and the requisition for sending the sample for chemical examination were sent to the Court of Judicial First Class Magistrate, Kayamkulam at about 10 a.m. on the next day. Ext.P4 is the thondi list and Ext.P5 is the requisition. He deposed that after recovering MO1 bottle from the appellant the contents therein was identified as spirit diluted with water by smelling and tasting. PW3 was the Excise Guard then attached to the Excise Range Office, Karthikappally who accompanied PW2 during the night patrol. He corroborated the version of PW2 regarding the interception of the appellant, search and seizure of MO1 bottle containing spirit diluted with water. He would also depose that the sample taken was sealed and labelled and upon arresting the appellant he was taken to the Excise Range Office. As noticed hereinbefore, the learned counsel for the appellant contended that there is discrepancy in the testimonies of PWs 2 and 3 regarding the contents in MO1. The oral testimony of PW2 would reveal that he deposed that after seizure he smelled and tasted the liquid in MO1 and identified it as spirit diluted with water. True that, during the chief examination PW3 deposed that it was arrack that was seized from the appellant. However, during the cross examination it was brought out that by saying so he meant that the contents in MO1 was spirit diluted with water. In such circumstances, it cannot be said that there is material discrepancy in the oral testimonies of PW2 and PW3. PW4, the Excise Range Inspector at the relevant point of time, would depose that he conducted the investigation in the crime and questioned the witnesses and recorded their statements. He proved Ext.P6 as the report of the chemical examination of the sample sent for analysis. Ext.P6 is the report of the expert which falls under the report of a scientific expert under Section 293 Cr.P.C. A perusal of Ext.P6 would reveal that it was noted therein that the seal on the bottle containing 200 ml. of clear and colourless liquid sent for analysis was intact. The evidence of PWs 2 and 3 would reveal that after taking the sample from the contraband liquid it was sealed and labelled in accordance with the provisions and it was thereafter that the same was taken to the Excise Office. PW2 who seized the same deposed to the effect that it was under his custody. PW3 has also spoken to the effect that the sample and the residue in the bottle of the contraband liquid was properly sealed and labelled. In this case, the fact that the evidence of PWs 2 and 3 and the statements in Ext.P6 were not shaken would go in favour of the prosecution. In view of the evidence on record there cannot be any doubt with respect to the fact that MO1 under Ext.P1 was seized from the possession of the appellant/accused and the sample drawn from the seized contraband article and sent for analysis was containing 26.24% by volume of ethyl alcohol. Though the appellant took up the contention that what was seized from him was vinegar while he was returning home holding ducks and vinegar he did not adduce any further evidence. Thus, taking into account the evidence on record I do not find any reason to hold that the appreciation of evidence on record was utterly perverse and it can only be said that evidence on record was properly appreciated by the trial court. In the said circumstances, the conviction entered against the appellant is not liable to be interfered with and accordingly, it is confirmed.
5. I will now, consider whether the sentence imposed on the appellant for the conviction invites interference. As noticed hereinbefore, the appellant stands sentenced to undergo simple imprisonment for one year and to pay a fine of ₹ 1,00,000/-. In default of payment of fine he is to undergo simple imprisonment for a further period of one year. Set off was also allowed. The contraband liquid found from the possession of the appellant is 750 ml. The learned counsel for the appellant submitted that the appellant is now aged 55 years. Evidently, the trial court also found that there is no evidence to show that the appellant is a habitual offender and there is any previous conviction against him. Taking into account all the aforesaid aspects I am of the view that a modification is required as regards the substantive sentence imposed against the appellant. In the light of the provisions under Section 55(a) of the Act once an accused is found guilty thereunder and consequently convicted the sentence of fine shall not be less than Rs.1,00,000/-. However, as regards the substantive sentence, going by the provisions it could extend up to 10 years and no minimum period of sentence is prescribed. In the circumstances, in supersession of the substantive sentence of imprisonment for one year the appellant is sentenced to undergo simple imprisonment for a period of three months. The sentence to pay a fine of Rs.1,00,000/- is maintained. In the event of default of payment of fine the appellant shall undergo simple imprisonment for a further period of three months. Set off is allowed under Section 428 Cr.P.C. Records of the trial court be sent down.
TKS Sd/-
C.T.RAVIKUMAR Judge