Manojan vs State Of Kerala
2021 Latest Caselaw 7602 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

       THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

 THURSDAY, THE 04TH DAY OF MARCH 2021 / 13TH PHALGUNA, 1942

                      CRL.A.No.2436 OF 2007

    SC 806/2005 OF ADDITIONAL DISTRICT & SESSIONS COURT,
                         VADAKARA


APPELLANT/S:

               MANOJAN, S/O. ANDI,
               AGED 38 YEARS
               KALARIYIL (H), ERAMALA AMSOM, ORKKATTERI DESOM,
               VADAKARA TALUK, KOZHIKODE DISTRICT.

               BY ADVS.
               SRI.C.VALSALAN
               SRI.K.RAKESH ROSHAN
               SMT.THUSHARA.V

RESPONDENT/S:

               STATE OF KERALA
               REP. BY PROSECUTOR, HIGH COURT OF KERALA,,
               (EXACHERRY POLICE STATION, CRIME NO.40/2005).

               R1 BY PUBLIC PROSECUTOR

OTHER PRESENT:

               SMT. M. K. PUSHPALATHA, SR.PP

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
04.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Case No. CRL.A 2436/2007
                                -2-




                           JUDGMENT

The appellant was convicted and sentenced by the court below under Section 63 of the Abkari Act.

2. The prosecution allegation is that on 28.1.2005 at about 5.10 p.m., the appellant was found in possession of six bottles of Indian made foreign liquor, each bottle having a capacity of 375 ml each and 34 bottles of Indian made foreign liquor, each bottle having a capacity of 180 ml each, in contravention of the provisions of the Abkari Act. The total quantity of contraband possessed by the appellant was 8.370 litres of Indian made foreign liquor.

3. Heard.

4. The evidence of PW1 would prove the detection of offence, the seizure of the contraband, the sampling and the arrest of the appellant. PW2 was a Police Constable who accompanied PW1 at the relevant time. PW2 also supported the evidence of PW1 in all material aspects. Case No. CRL.A 2436/2007

PW3 was an independent witness, who attested Ext.P3 Seizure Mahazar. PW3 admitted his signature in the Seizure Mahazar. However, he did not support the prosecution case with regard to the seizure of the contraband from the appellant. PW4 also was an independent witness, who is an attestor to Ext.P8 Scene Mahazar. He admitted his signature in Ext.P8 Scene Mahazar. PW5 conducted the investigation as per the direction of the Circle Inspector of Police concerned. The samples were sent to the laboratory through the Court. PW6 proved the same.

5. Having re-appreciated the evidence, I am fully convinced that the prosecution could establish through the evidence of PW1 and PW2 that the appellant was found in possession of 8.370 litres of contraband, as alleged by the prosecution. Ext.P9 is the Certificate of Chemical Analysis, which would show that the samples analysed in the laboratory contained ethyl alcohol. The first sample contained 41.83 % by volume of ethyl alcohol and the Case No. CRL.A 2436/2007

second sample contained 41.94% by volume of ethyl alcohol. No material has been brought to the notice of this court to indicate that the appreciation of evidence or the concurrent finding of conviction by the court below was perverse or incorrect. The contraband seized was Indian made foreign liquor. The permissible quantity of Indian made foreign liquor which a person could possess as per S.R.O. No.725 of 2003 dated 2.8.2003 was three litres. Therefore, there can be no doubt that the appellant was found in possession of excess quantity of Indian made foreign liquor than what was permissible by law. In the said circumstances, the court below was justified in convicting the appellant under Section 63 of the Abkari Act.

5. As regards the sentence, the learned counsel for the appellant has pleaded for leniency. As per the judgment of the court below, the appellant was in custody from 28.1.2005 to 10.2.2005 in connection with this case. There is no previous conviction against the appellant. Case No. CRL.A 2436/2007

Considering the facts and circumstances of the case, I am of the view that the sentence awarded by the appellate court can be modified and reduced to imprisonment to the period of detention already undergone by the appellant in connection with this case and a fine of Rs.5,000/- (Rupees five thousand only) with a default clause for simple imprisonment for one month, to meet the ends of justice. It is ordered accordingly.

In the result, this Criminal Appeal stands allowed in part as above.

sd B. SUDHEENDRA KUMAR, JUDGE.

dl/