IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 CRL.A.No. 2065 of 2006(C) ------------------------- SC.396/2001 of ADDL. SESSIONS COURT (ADHOC), KOLLAM CP.163/1999 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOLLAM .................... APPELLANT(S): ACCUSED --------------------- FRANCIS, S/O.THOBIAS, KUTTIVILA VEEDU, THEKKE MURI, EAST KALLADA VILLAGE. BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.DILEEP P.PILLAI SRI.RENJITH B.MARAR SMT.LAKSHMI.N.KAIMAL RESPONDENT(S): COMPLAINANT & STATE ---------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.S.U.NAZER THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 25/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.A.No.2065 of 2006 ---------------------------------------- Dated this the 25th day of November 2008 JUDGMENT The appellant in this appeal assails the verdict of guilty, conviction and sentence in a prosecution under Sec.55(a) and (i) of the Kerala Abkari Act. The crux of the allegations against the appellant is that he was found to keep in his possession for sale 1.5 litres of arrack when he was intercepted by a police party led by P.W.4 at his house at 5 p.m. on 10/7/99. Investigation was conducted and final report was filed. Cognizance was taken. The case was committed to the Court of Session. The appellant denied the offences alleged against him and thereupon the prosecution examined P.Ws.1 to 5 and proved Exts.P1 to P6. M.Os.1 and 2 were also marked. 2. P.Ws.1 and 2 are attestors to the seizure mahazar – Ext.P1. They turned hostile to the prosecution. However, they admitted their signatures in Ext.P1. They admitted the further fact that they have signed as attestors in Ext.P1 after the same was written up. P.W.4 is the detecting officer – S.I. of Police and P.W.3 is the Police Constable who had accompanied P.W.4. CRL.A.No.2065/06 2 Ext.P1, as stated earlier, is the seizure mahazar. Ext.P2 is the FIR registered by P.W.4. Ext.P3 is the remand application submitted to the Magistrate. Ext.P4 is the property list under which the contraband article was produced before court. Ext.P5 is the report of the Chemical Examiner and Ext.P6 is the report submitted by the Investigating Officer to court. 3. In the course of cross-examination of the prosecution witnesses and when examined under Sec.313 Cr.P.C. the accused/appellant took up the defence of blanket denial. According to him, he was standing in the bus stop; he was taken into custody and a false case was foisted against him. No defence evidence was adduced. 4. The learned Judge, on an anxious consideration of all the relevant circumstances, came to the conclusion that the prosecution has succeeded in establishing the offences alleged against the accused. Accordingly the court below proceeded to pass the impugned judgment. 5. The learned counsel for the appellant and the learned Public Prosecutor have been heard. The learned counsel for the appellant assails the verdict of guilty, conviction and sentence on CRL.A.No.2065/06 3 various grounds. 6. First of all, the learned counsel contends that reliance placed on the oral evidence of P.Ws.3 and 4 is not justified. They are police officials and they are interested in the prosecution. The evidence clearly shows that the appellant was an accused in an earlier crime. According to the appellant, as he was involved in an earlier offence, this case has been falsely foisted on him. The learned counsel for the appellant further submits that P.W.4 detecting officer has himself proceeded to conduct the investigation. The court cannot hence draw inspiration for the oral evidence of P.W.4. There has been no independent evidence tendered by any one other than the detecting officer and his subordinate. This has resulted in prejudice and hardship to the appellant, it is urged. 7. I do not find much force in this contention. P.Ws.3 and 4 are, of course, police officials. It is their duty as public servants to detect offences and bring the offenders to book. This interest which they have in the discharge of their public duty cannot by itself relegate them to the category of interested and partisan witnesses whose testimony is looked upon with CRL.A.No.2065/06 4 doubt, suspicion and reservation by the courts. I have gone through the cross-examination of P.Ws.3 and 4. Except a blanket suggestion that the appellant was caught hold of from the bus stop and this false case has been foisted on him, there is absolutely no reason to doubt or suspect the version of P.Ws.3 and 4. 8. It is true that P.Ws.1 and 2 the alleged independent attesting witnesses to Ext.P1 seizure mahazar have turned hostile to the prosecution. Their hostility does not at all impress me as a relevant circumstance to generate any doubt or suspicion about the case of the prosecution. P.Ws.1 and 2 significantly had admitted their signatures in the contemporaneous seizure mahazar - Ext.P1. More importantly, it was admitted, that it was written up before they were asked to affix their signatures in the contemporaneous seizure mahazer Ext.P1. The signatures were affixed at the relevant time after the document was written up, it is admitted by PWs 1 and 2. This circumstance does go a long way to offer assurance to this court for the versions of PWs 3 and 4. The F.I.R registered Ex.P2 as also the remand report Ext.P3 which are dated 10/7/2008 do CRL.A.No.2065/06 5 also offer assurance to the version of PWs 3 and 4. I am not persuaded to accept the challenge against the oral evidence of PWs 3 and 4. The challenge raised in the first ground must hence fail. 9. It is then contended that there is an inordinate delay in the production of the material detected before the court. I have perused Ext.P4 property list under which the properties were delivered to court. It bears the date 10/7/1999 as the date of preparation of the document. It is of course seen that the property is received as item T.363/1999 only on 11/10/1999. There is nothing in the document to show that the property list prepared on 10/7/1999 had been delivered on any date prior to 10/11/1999. As such there is delay in the property produced before court being received as an item of property. 10. The law mandates that the property must be delivered to court forthwith after the seizure. My attention has been drawn to Ext.P3 remand report in which I find that it is already stated that the property received has been sent to court as per property list. Thus Ext.P3 is dated 10/7/1999 and the accused with Ext.P3 has been produced before the learned Magistrate on CRL.A.No.2065/06 6 11/7/1999. The statement in Ext.P3 that the properties have been sent to court as per property list goes a long way to assure the court of the genuineness of Ext.P4 though it is not seen formally received in court prior to 11/10/1999. Non-compliance with the mandate of the statute may, in an appropriate case, generate reasonable doubt against the prosecution case; but where it does not generate reasonable doubt the alleged deficit in the performance of official duty by the official cannot by itself persuade a court to throw overboard the entire case of the prosecution. Though thoroughly dissatisfied that the records maintained in the court show that the property was received only on 11/10/1999, I am not persuaded to attach crucial significance to such delay in the production of such property before court especially considering the nature of the cross-examination of PWs 3 and 4 by the accused. 11. Finally, it is contended that in any view of the matter, the offences alleged under Section 55(a) and (i) would not lie. I find merit in the contention. I am satisfied that the proper section of offence attracted in the instant case is the offence under Section 8(2) of the Kerala Abkari Act. The article seized is CRL.A.No.2065/06 7 arrack and under Section 8 of the Kerala Abkari Act manufacture, possession, sale etc. of arrack is totally banned. I am, in these circumstances, satisfied that the challenge though acceptable can only persuade the court to alter the conviction from Section 55(a) and (i) to Section 8(2) of the Kerala Abkari Act. The challenge in this ground can succeed only to the above extent. 12. Lastly and fourthly it is contended that the sentence imposed is excessive. The appellant has been sentenced to undergo R.I for a period of two years and to pay a fine of Rs.1,00,000/-. Considering the totality of the facts and circumstances of this case, I am satisfied that the sentence imposed can be modified and reduced. It is brought to my notice that consequent to the inability of the appellant to comply with the conditions regarding deposit of the amount, he has been taken into custody in October 2007 and is continuing in custody from that date. I am satisfied that leniency can in these circumstances be shown on the question of sentence. 13. In the result, a) This appeal is allowed in part. CRL.A.No.2065/06 8 b) The verdict of guilty is upheld but conviction is altered from Section 55 (a) and (i) of the Kerala Abkari Act to Section 8 (2) of the Kerala Abkari Act. c) Sentence imposed on the appellant is modified and reduced. In supersession of the substantive sentence imposed by the court below, the appellant is sentenced to undergo R.I for a period of nine months. The sentence of fine is upheld; but the default sentence is modified and reduced to S.I for a period of three months. 14. Communicate this judgment to the court below forthwith and to the prison authorities. If the appellant has already served the modified sentence hereby imposed and his detention is not required in connection with any other case, he shall forthwith be released from custody. (R.BASANT, JUDGE) jsr CRL.A.No.2065/06 9 R.BASANT, J. ---------------------- R.P.F.C.No. ---------------------------------------- Dated this the 20th day of August 2008 GIST OF THE ORDER xxxxxxxxxxxxxxxxx 11. In the result, a) This R.P.F.C is allowed in part. b) Sentence imposed on the petitioner under Section 125 (3) Cr.P.C is modified and reduced. The sentence of imprisonment is reduced to S.I for a period of twenty months. Communicate this order to the court below forthwith. The court below shall issue revised warrant of commitment. Communicate the order forthwith to the prison authorities and to the petitioner through the prison authorities. CRL.A.No.2065/06 10 b) The sentence of imprisonment is reduced from 36 months to 27 ½ months.