Judgment · High Court · 2007

J.M.JAMES, J. - - - - - - - - - - - - - - - - - - - -Crl.A.No.1946 of 2003 (D) - - - - - - - - - - - - - - - - - - - -Dated this the 27th day of March, 2007J U D G M E N TThe accused in S.C.No.291/2000, on the file of theAdditional Sessions Court, (Ad hoc), Fast Track Court-I, Manjeri, is the appellant. He was found guilty of the offence punishableunder Section 55(a) and 55(h)of the Abkari Act, in short 'the Act'.The appellant-accused was, therefore, convicted and sentencedto undergo rigorous imprisonment for five years and pay a fine ofrupees one lakh, in default to undergo simple imprisonment forone year. The same is under challenge through this appeal. 2.The prosecution case in brief is that, PW.1, theSub Inspector of Police, Perinthalmanna Police Station, hadreceived reliable secret information that Indian made foreignliquor was being sold, unauthorisedly, in the milk booth of theappellant. Therefore, PW.1, along with PW.2 and others, went tothe milk booth of the appellant, on 03/06/1997, at about 7.55p.m. He conducted a search. He seized 12 bottles of Indian Crl.A.No. 1946/2003-: 2 :-made foreign liquor and MO.2 series glass and steel plate. Healso found about three persons, sitting on the bench anddrinking liquor. PW.1, therefore, arrested the appellant, seizedthe contraband as well as MO.2 series, and prepared Ext.P1seizure mahazar, attested by PWs.3 and 4. PW.1 had taken threesamples of the liquor, Bell XXX rum, and sent the same forchemical analysis. Ext.P7 is the chemical analysis report. Itshows that the samples contain 42.48, 42.37 and 42.48percentage by volume of ethyl alcohol. PW.6 investigated thecase. PW.5 is the attestor to Ext.P5 scene mahazar. PW.6 filedthe final report on completion of the investigation. Ext.P1seizure list reveals that 12 bottles were seized, which includesthree items of specimen samples. 3.The defence contention is that the prosecutionestablished that only 1.400 litres were tested and proved asIndian made foreign liquor, XXX rum, and, therefore, it waswithin the permitted quantity. Hence, in the light of theauthority in Krishnankutty vs. State of Kerala [2005 (3) KLT568], the apellant had not exceeded the permitted quantity, as Crl.A.No. 1946/2003-: 3 :-per the law. Therefore, prayed that the appellant may beacquitted.4.I have gone through the evidence available onrecord. Conducting of the milk booth, by the appellant, isestablished even through the hostile witnesses. Ext.P5 scenemahazar clearly describe the milk booth of the appellant. PW.4has stated that he was in front of the shop for buying articles. Thus, the evidence show that there was a milk booth, and thefurther materials on record clearly establish that there wasseizure of Indian made foreign liquor, unauthorisedly, kept bythe appellant. He also sold the same.5.The learned counsel for the appellant, however, submitted that the persons those who were found sitting on thebench, when PW.1 reached the occurrence, were not cited andexamined. But PW.1 deposed that the appellant and thewitnesses alone were at the shop at that time. PW.3 denied thathe was a regular visitor to the shop of the appellant for drinkingliquor. In Ext.P1, item No.8 is a plastic measurement glass, of8.5 cms height, for drinking; item No.6 is a steel plate of 26 cms Crl.A.No. 1946/2003-: 4 :-diameter. When I appreciate the entire material, it is clear thatPW.1 was selling liquor, unauthorisedly, and he possessed liquorfor the said purpose of sale.6.There had been contentions before the trialcourt as well as before me that there was no booth as such, andthere was no seizure, as alleged by the prosecution. But theevidence of PW.4, as well as the other witnesses, clearly showthat the booth was conducted by the appellant. Seizure also isproved. Though PWs.3 and 4 turned hostile, they have signedExt.P1 seizure mahazar. That evidence also further reveal thatthe signature was affixed, from the side of the road. They turnedhostile because of the influence of the appellant, who is a manfrom that local area. Therefore, I hold that the prosecution hasestablished a case under Section 55(a) of the Act. 7.In view of the facts that are stated above anddiscussed, and in the light of the submissions made by thelearned counsel for the appellant, I hold that the accused-appellant is guilty of the offence punishable under Section 55(a)of the Act. Therefore, I sustain the conviction. Crl.A.No. 1946/2003-: 5 :-8.The learned counsel for the appellant submittedthat the sentence is very high and harsh. Therefore, prayed thatthe sentence may be modified and reduced.9.However, in the light of the various facts that aresubmitted by the learned counsel for the appellant, I modify andreduce the sentence from rigorous imprisonment for five years torigorous imprisonment for six months. I sustain the fine ofrupees one lakh. However, I reduce the default sentence of fine, to simple imprisonment for three months. The appeal is partly allowed, as above.(J.M.JAMES)Judgems