Hon'ble Judges/Coram:
R. Narayana Pisharadi

ORDER

R. Narayana Pisharadi, J.

1. The revision petitioner is the accused in the case S.C. No. 321/2014 on the file of the Court of the Assistant Sessions Judge, Hosdurg.

2. The prosecution case is that, on 06.01.2014, at about 14.30 hours, at a public road at the place Pattalam Colony in Parappa Village, the Excise Circle Inspector (PW3) of Hosdurg Excise Range found the petitioner/accused with a can containing three litres of arrack.

3. The trial court framed charge against the accused under Section 8(1) read with 8(2) of the Abkari Act. The accused pleaded not guilty and claimed to be tried.

4. The prosecution examined PW1 to PW6 and marked Exts. P1 to P13 documents. No evidence was adduced by the accused.

5. The trial court found the accused guilty of the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of three months.

6. The accused filed Crl.A. No. 6/2017 before the Court of Session, Kasaragod challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction against the accused but modified the substantive sentence of imprisonment imposed on him by the trial court and reduced it to rigorous imprisonment for a period of six months.

7. Aggrieved by the concurrent verdicts of guilty and conviction made against him by the courts below and the sentence imposed on him by the appellate court, the accused has filed this revision petition.

8. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the records.

9. PW3 is the Excise Circle Inspector who detected the offence. He has given evidence regarding the material particulars of the occurrence. PW4 is the Preventive Officer who was in the excise party led by PW3. His evidence corroborates the testimony of PW3.

10. PW1 and PW2 are the independent witnesses examined by the prosecution. They did not support the prosecution case against the accused. They denied having seen the excise party seizing arrack from the possession of the accused. But, they admitted their signature in Ext. P1 arrest memo and Ext. P2 seizure mahazar.

11. Learned counsel for the petitioner has contended that the testimony of the excise officers, which is not corroborated by the evidence of independent witnesses, cannot form the basis of conviction against the accused.

12. There is no merit in the aforesaid contention. It is trite that, when the evidence of the official witnesses is trustworthy and credible, there is no reason not to rest the conviction on the basis of their evidence. It is for the accused, through cross-examination or through any other materials, to show that the evidence of the official witnesses is either unreliable or at least unsafe to be acted upon. There is no legal proposition that evidence of official witnesses, unless supported by independent evidence, is unworthy of acceptance. Evidence of police or excise officers cannot be discarded merely on the ground of their desire to see the success of the case. However, prudence requires that the evidence of such officers, who are interested in the outcome of the result of the case, shall be carefully scrutinized and independently appreciated. If the testimony of an official witness is found to reliable and trustworthy, the court can definitely act upon the same. Credibility of a witness has to be tested on the touchstone of truthfulness and trustworthiness. It is not the law that official witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by the testimony of independent witnesses. Evidence of such officers must be considered on its own merits and its own inherent improbabilities.

13. In the instant case, PW3 has sworn to the entire incident in necessary details. His evidence, with regard to the seizure of the can containing the liquid from the possession of the accused, is corroborated by the evidence of PW4. The recitals in Ext. P2 seizure mahazar, the contemporaneous document prepared by PW3 at the spot of the occurrence, also corroborate his testimony regarding the occurrence. There is no striking improbability or material contradiction or discrepancy in the evidence of PW3 and PW4 regarding the seizure of a can containing arrack from the possession of the petitioner.

14. There is no whisper of an allegation that PW3 and PW4 or any other excise officer had any motive to falsely implicate the petitioner in a case of this nature. There is nothing to show that the excise officers have falsely implicated the petitioner in the case with a view to settle any personal score with him. No semblance of even a suggestion was made to PW3 and PW4 in the cross examination to indicate even remotely that they had any animosity against the petitioner.

15. The courts below have concurrently found that the evidence of PW3 and PW4 regarding the occurrence is reliable and trustworthy. By exercising the correctional jurisdiction in revision, I find no sufficient ground to interfere with the concurrent findings made by the courts below that a can containing liquid was seized from the possession of the petitioner.

16. Ext. P13 is the chemical analysis report in respect of the sample of liquid which was sent to the laboratory for examination. It shows that the sample of liquid contained 11.80% by volume of ethyl alcohol.

17. This is a case in which there is evidence to find that the very same sample, which was drawn by PW3 at the spot of the occurrence from the liquid contained in the can seized from the possession of the petitioner, had reached the chemical examiner for analysis. The link evidence is complete and unbroken in this case.

18. There is a specific recital in Ext. P2 mahazar that the bottle in which the sample was taken and the can containing the residue of liquid were sealed and that label, bearing the signature of PW3 and the witnesses and the accused, was affixed on the sample bottle and the can. PW3 has given evidence also to that effect. He has also stated that it was his personal seal which was used for sealing the articles. The specimen impression of the seal is also seen affixed on the mahazar.

19. The evidence of PW3 is that he entrusted the accused and the articles and the records at the Excise Range Office concerned. PW5 is the Preventive Officer who was in charge of the Excise Range Office. He has given evidence that the accused and the articles and the records were produced before him at 17.30 hours on the date of the occurrence itself. Ext. P5 is the crime and occurrence report prepared by PW5. The description of the sample and the can given in Ext. P5 report shows that there was seal and label on them. Ext. P6 is the property list prepared by PW5 for producing the sample before the court. It shows that the sample was produced before the Magistrate on the date of occurrence itself. The description of the sample bottle given in Ext. P6 property list also shows that there was seal and label on it at the time of producing it in the court. Ext. P7 is the copy of the forwarding note prepared by PW5 for sending the sample for chemical examination. It shows that the sample was sent for analysis from the court on 09.01.2014. It bears the specimen of the seal which was used by PW3 for sealing the sample bottle at the spot of the occurrence. As per Ext. P4 document, the specimen of the seal used for sealing the sample was also separately produced before the court. It is stated in Ext. P13 chemical examination report that the seal on the sample was intact and it tallied with the sample seal provided. In these circumstances, there can be no doubt with regard to the fact that the very same sample of liquid which was drawn at the spot of the occurrence had reached the chemical examiner for analysis without any tampering and that Ext. P13 chemical examination report relates to that sample itself.

20. The evidence of PW5 shows that he had produced the can containing arrack before the Deputy Excise Commissioner.Ext. P8 is the inventory prepared by the Deputy Excise Commissioner. It shows that the can produced before him was sealed and there was label, bearing the signature of PW3 and the witnesses and the accused, on the can. After verifying the inventory, learned Magistrate had issued Ext. P9 certificate stating that the inventory was correct.

21. Section 53A of the Abkari Act deals with preparation of inventory, by the authorised officer, of the liquor or other articles seized under the Act and certification of the inventory by the Magistrate concerned. Section 53A (5) of the Act states that, notwithstanding anything contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, any Court trying an offence under the Act, shall treat the inventory certified by the Magistrate as primary evidence in respect of such offence. Learned counsel for the petitioner has not pointed out any infirmity in the inventory prepared by the authorised officer and the certificate issued by the learned Magistrate.

22. Discretion exercised by subordinate courts in the matter of appreciation of evidence and in choosing to accept the evidence will not normally be interfered with lightly by this Court exercising the correctional jurisdiction in revision. There is no illegality, impropriety or perversity in the appreciation of evidence by the courts below. It leads to the conclusion that the verdicts of guilty and conviction against the petitioner are absolutely justified and do not, at any rate, warrant any interference by this Court in revision.

23. Learned counsel for the petitioner contended that the sentence imposed on the petitioner is excessive. I find force in this contention.

24. In this context, I take note of the observations made by the Apex Court in Sasikumar v. State of Kerala: MANU/SC/1060/2012 : (2013) 11 SCC 680, which read as follows:

"Before parting with the record of the case, we would like to point out that Section 8(2) of the Abkari Act does not fix any upper limit for the fine but lays down that the fine shall not be less than Rs. 1,00,000/-. Since the minimum amount of fine prescribed by the law is kept so high, the courts naturally give the default sentence of imprisonment for a substantially longer period. As noted above, the trial court has given the default sentence of one year which was reduced by the High Court to six months. We may note that in cases where poor people like the appellants who may only be the carrier of the arrack or who may be trying to eke out a living from the illegal trade are caught committing the offence, they are hardly in position to pay the fine of Rs. 1,00,000/- and for them the default sentence becomes an additional period of incarceration. In a way, fixing the minimum fine at such a high amount, regardless of the countless possible variables in the commission of the offence under Section 8(1), leads to discrimination in favour of those convicts who have sufficient means to pay the fine and, thus, avoid any default imprisonment and the small fries for whom the default sentence would invariably mean an additional sentence of imprisonment. To our mind, it is desirable to leave the court free in exercise of judicial discretion in the matter of imposition of fine".

(emphasis supplied)