IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 CRL.A.No. 1390 of 2003() ------------------------ SC.286/2003 of ADDL. SESSIONS COURT(ADHOC-II), THODUPUZHA. .................... APPELLANT(S): ACCUSED --------------------- SANTHOSH S/O. VISWANATHAN, PEZHUMKATTIL VEEDU, KOOTTAR BHAGAM, KARUNAPURAM VILLAGE. BY ADVS. MR.SOJAN MICHEAL SMT.JENCY MICHEAL RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA - REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/07/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1390 OF 2003 = = = = = = = = = = = = = = = Dated this the 27th day of July, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed by the Addl. Sessions Judge,Adhoc-II, Thodupuzha in S.C.286/01. Accused was charge sheeted for offences u/s 55(a) (i) of the Abkari Act and was convicted u/s 55(a) and (i) but was sentenced to undergo rigorous imprisonment for a period of one year and a fine of Rs.1,00,000/- and in default to undergo further imprisonment for a period of two months u/s 55(a) of the Abkari Act. It is against that decision the accused has come up in appeal. 2. The points that arise for determination are: (1)Whether the accused has committed offences u/s 55 (a) and (i) of the Abkari Act? (2) In case of guilt, is the sentence excessive? Points 1 and 2: 3. Heard the learned counsel for the appellant as well as the Prosecutor. The learned counsel for the appellant had Crl. Appeal NO. 1390 OF 2003 -:2:- very strongly contended before me the following points. The first point is that there is a delay in producing the material objects before court. (2) There is a further delay in sending the sample for analysis. (3) What is described in the seizure mahazar is 150 ml whereas what is send for analysis is 180 ml. and (4) He would also contend that the case is foisted at the instance of PWs.1 and 2. 4. The case of the prosecution is that on 3.6.99 at about 7 p.m. the accused was found in possession of 3 liters of arrack in a white can and a glass while he was in the property belonging to his brother Vikraman. PWs.1 and 2 are the two independent witnesses and PW3 and 4 are the two official witnesses. 5. Let us first analyze the evidence of PW4 who had detected the case. He had deposed before court that along with PW3 and others when they were on duty they found the accused with a white can and he was intercepted and examined. It was found that it contained 3 litres of illicit arrack. It is deposed by him that 180 ml was taken as sample and it was sealed and it is Ext.P1. He also speaks about the Crl. Appeal NO. 1390 OF 2003 -:3:- other particulars. It is also his version that he had produced the articles only on 24.6.1999 and it was in his safe custody till that time and on account of his other duty he was not able to produce it before court. So far as it relates to the writing in the seizure mahazar as 150 ml he would submit it is only a mistake and it was really 180 ml that was taken as sample. He has been cross examined at length and I do not find any serious contradiction or any unbelievable version tendered by the said witness. 6. PW3 is the person who had accompanied PW4 and he had also deposed in the same line as that of PW4. He also states that 180 ml sample was taken. When he was confronted so in the cross examination he would submit that he had stated as 150 ml as only a mistake. He said it was a 180 ml bottle and the entire bottle was filled with this liquid. The suggestion that three samples were taken was also put to him in re-examination to which he states it as a mistake. 7. Unusually it is a case where both the seizure mahazar witnesses had stood with the prosecution and both of them had deposed that the accused was found with a Can and Crl. Appeal NO. 1390 OF 2003 -:4:- a glass and the police officials intercepted him and sample was taken and the liquor was sealed. The evidence of PWs.1 and 2 thus supported the case of the prosecution. 8. Now I will try to answer the points raised by the counsel for the appellant. So far as the difference in sample is concerned it is not of a very serious consequence for the reason it was 180 ml bottle which was fully filled with the liquor even when the material objects list was prepared it was described as 180 ml. Though in the seizure mahazar it is shown as 150 ml. one cannot attribute that there is a substitution especially when at the earlier point of time on 3.9.99 itself there is a contemporaneous document to prove that it is 180 ml. 9. The next point is regarding the delay. It is true that though the articles were seized on 3.6.99 it was produced only on 24.6.99. PW4 would depose that it was on account of his other duty he was not able to produce it. We find the sample seal was also found in the property list. The court which received the property list only after verification and therefore it has to be stated that samples were received as on Crl. Appeal NO. 1390 OF 2003 -:5:- condition when it was seized. The evidence of P3, property list etc. would show that the endorsement that the samples and material objects were returned to the Investigating Officer for proper custody. So it has also to be stated that the very object of compliance of the procedural formalities is that the liquor found to be in possession of a person should be the liquid that is taken as sample and it is that liquid which is produced before Court and it is the same liquid that had been sent for chemical analysis. It is to safe guard these material aspects the procedure is prescribed. Just because there is a delay, one cannot jump to the conclusion that it has caused prejudice. So from the materials and evidence available it can be seen that there is no opportunity at all for the prosecution to tamper with the sample. It is always desirable that it is sent for chemical analysis immediately and it has been sent only after a period of seven or eight months. It is not a system that can be appreciated but that shall not be a ground for acquittal in a case where samples produced before Court had been sent for chemical analysis and it reveals that the seal was in tact and it was found tallied with the sample seal Crl. Appeal NO. 1390 OF 2003 -:6:- provided. There is no question put to any of the witnesses of any possibility of the sample being tampered when it was in the custody of the Court. So the mere delay cannot be taken as a ground to throw away the case of the prosecution. So all these points are answered in favour of the prosecution by me too and the evidence in this matter including the evidence of the independent witnesses strengthen the case of the prosecution to hold that the accused was found to be in possession of 3 liters of illicit arrack in a white Can and it was seized from him. 10. Now the learned counsel would contend that S.55 (a) will not lie for the reason that it was not in the process of import, export, transit or transport, the possession was found out. He had relied upon the decision of a Division Bench ruling reported in Mohanan v. State of kerala 2007 (1) KLT 845. wherein it was held that possession must be while illegally transporting. No such evidence is available to prove that an offence u/s 55(a) may not lie. But here is a case where the accused was found to be in possession of the liquor with a glass which means it is intended for sale or it is stored for the Crl. Appeal NO. 1390 OF 2003 -:7:- purpose of sale. When it is so S.55(i) will be squarely attracted. The Court below found him guilty u/s 55(i) also. So in the facts and circumstances of the case I convict him under S.55(i). 11. Now turning to the question of sentence. The accused has been sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default to undergo further imprisonment of two months. When questioned u/s 313 Cr.P.C. he has submitted that he had got wife and children to look after. The learned counsel also submits he is coming from poor circumstances and leniency may be shown. I am aware that selling of illicit arrack is a social menace but some time people below poverty lien indulge in such type of activities and therefore while awarding punishment the Court is expected to strike a social balance. So I am inclined to reduce the sentence of imprisonment from one year to three months and the default sentence from two months to one month. Crl. Appeal NO. 1390 OF 2003 -:8:- 12. In the result the Crl.Appeal is disposed as follows: 1) Conviction and sentence u/s 55(a) of the Abkari Act is set aside. 2) The accused is convicted and sentenced u/s 55(i) of the Abkari Act as found by the Court below also. 3) The sentence is modified and the accused is sentenced to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.1,00,000/- and in default to undergo a further imprisonment of one month. 4) The accused is entitled to entitled to set off as contemplated under S.428 Cr.P.C. M.N. KRISHNAN, JUDGE. ul/-