K. KRISHNAN v. STATE OF KERALA

Crl. Appeal No. 1935 of 2003 -: 2 :-prepared then and there. The accused and the contrabandarticles were produced before the learned Magistrate onthe next day i.e. 08.10.99. The investigation was conductedby PW.1 himself and charge sheet was laid against theaccused. PW.1 to PW.2 were examined and Exts.P1 to P7were marked. Ext.D1, the copy of the FIR in CrimeNo.102/02 of that police station was marked. BesidesMO.1, the black can which contained arrack was alsomarked. The Additional Sessions Judge accepted theevidence given by PW.1, the S.I. of police. Though PW.2,the independent witness did not support the prosecution,accepting the evidence of PW.1, the Court below found theaccused guilty. He was sentenced to undergo R.I. for oneyear and to pay Rs. 1 lakh as fine and in default, to undergoR.I. for three months. The learned counsel for the appellantwould submit that this case was foisted by one Narayananwho had serious grouse against the accused for whichExt.D1, the copy of the FIR has been relied upon by the Crl. Appeal No. 1935 of 2003 -: 3 :-appellant. Ext.D1 would show that there was a criminalcase registered under Section 324 IPC. It is seen fromExt.D1, that the appellant herein actually attackedNarayanan mentioned above, alleging that the aforesaidNarayanan was responsible for registering the case againstthe accused under the Abkari Act. That will not in any wayimprove the case of the appellant since the incidentreferred to in Ext.D1 was took place subsequent to thedetection of the case.3. The other ground that has been strenuously pressedinto service by the learned counsel for the appellant is thatthere is only the interested testimony of PW.1, the S.I.himself. PW.2, the independent witness did not support theprosecution. No other evidence was adduced to prove theprosecution case. It is argued that the case was taken byPW.1 himself and the case was investigated and the chargesheet was also laid by him and so the correctness of thestatement given by PW.1 could not be cross-checked by any Crl. Appeal No. 1935 of 2003 -: 4 :-superior officer or by any other officer and as such the courtbelow should not have accepted the evidence given byPW.1. The fact that PW.1 himself detected the case andcharge sheet was laid is no reason to hold that the wholeprosecution or trial is vitiated. Following the decisions ofthe Apex fCourt in Megha Singh vs. State of Haryana(AIR 1995 SC 2339) and State vs. V. Jayapaul reported in(2004 (5) SCC 232), it was held by this court in Biju @Sasi vs. State of Kerala 2011(4) KLJ 76 that as theaccused could not point out any circumstance by which theinvestigation caused prejudice to the accused only becausethe officer who detected the case himself investigated andlaid the charge sheet, it will not in any way be a reason tohold that the conviction is vitiated.4. It is also argued by the learned counsel for theappellant that though the case was stated to have beendetected on 07.10.'99, the properties actually reached thecourt only on 12.10.'99. Ext.P5, the property list shows that Crl. Appeal No. 1935 of 2003 -: 5 :-the property list was actually prepared on 08.10.'99. Thefact that the sample bottles were sealed and labelled wasspecifically mentioned in Ext.P5. The further fact that thesample bottles reached the court in a sealed condition isseen certified in Ext.P7, the report of the chemicalexaminer. It was certified that the sample of liquidcontained 22.43% by volume of ethyl alcohol. Though theproperties actually reached the court on 12.10.99, there isevidence to show that the seizure mahazar, the arrestmemo and other records reached the court on 08.10.99itself. Therefore, it can be found that the seizure waspromptly reported to the court. As such the contention thatthere was delay in producing of the property and so on thatground the accused is not entitled to be acquitted cannot besustained. 5. It is true that no other police constable was examinedto support the evidence given by PW.1. The evidence is tobe weighed and not counted. What is germane for Crl. Appeal No. 1935 of 2003 -: 6 :-consideration is whether the single testimony of PW.1inspires confidence in the minds of the court. The courtbelow had the opportunity to assess the evidence correctly.Though the learned counsel for the appellant has argued atlength stating that the evidence is unacceptable, I find noreason to accept the same. The upshot to my discussion isthat, the court below has rightly found that theaccused/appellant was carrying 5 litres of arrack in MO.1,the black can which was found to be arrack. Hence, theconviction of the appellant for the offence punishable underSection 55(a) of the Abkari Act is only to be confirmed.6. The learned counsel for the appellant submits thatthe appellant is the sole bread winner of the family and ifhe is sent to jail for a longer period, his family members willbe put to destitution. It is also submitted that he issuffering from various ailments. 7. Considering all the aspects, I find that thesubstantive sentence imposed by the court below can be Crl. Appeal No. 1935 of 2003 -: 7 :-reduced to SI for two months while maintaining thesentence regarding fine and default sentence.In the result, this Criminal Appeal is allowed in part.While maintaining the sentence regarding fine and defaultsentence, the substantive sentence is reduced to S.I. for twomonths. The period of detention, if any, undergone by himshall be set off.N.K. BALAKRISHNAN, JUDGE//True copy// P.A. To Judgesmvd