IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 CRL.A.No. 1009 of 2002() --------------------------------------- SC.220/2000 of ADDL.SESSIONS COURT (ADHOC), KOTTAYAM .................... APPELLANT(S): ACCUSED --------------------- ROY GEORGE, S/O. GEORGE VALLIYAMTHADATHIL VEEDU, KUNNUMPURAM BHAGOM, THIDANADU KARA, KONDOOR VILLAGE. BY ADV. MR.K.N.CHANDRABABU RESPONDENT(S): COMPLAINANT -------------------------- 1. STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. CIRCLE INSPECTOR OF POLICE, ERATTUPETTA. PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/03/2009, THE COURT ON 21/05/2009 DELIVERED THE FOLLOWING: ORDER ON CRL.MP.NO.8033/2002 IN CRL.A. 1009/2002 DISMISSED 21.05.2009 SD/- S.S.SATHEESACHANDRAN, JUDGE TRUE COPY P.S. TO JUDGE TSS S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.1009 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 21st May, 2009 JUDGMENT Accused is the appellant. He was prosecuted for the offences punishable under Section 55 (a) and (i) of the Kerala Abkari Act (for short, 'the Act'), on a report filed by the Circle Inspector of Police, Erattupetta. He had pleaded not guilty to the offences. The learned Additional Sessions Judge, after trial, found him guilty of the offence under Section 55(a) of the Act and thereupon, convicted him of that offence. He was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1 lakh with default term of simple imprisonment for 60 days. He was found not guilty of the offence under Section 55 (i) of the Act and acquitted of that offence. Aggrieved by the conviction and sentence imposed for the offence under Section 55(a) of the Act, questioning its legality, propriety and correctness, he has preferred this appeal. 2. The prosecution case, in brief, is that on the evening of 13.10.2000, while PW4, the S.I. of Police, Thidanadu Police Station, with a police party was engaged in patrol duty in a jeep within the jurisdiction of his station, he found the accused in a public pathway beside Kunnumpuram carrying a can and a plastic bottle. Seeing the Crl.A.No.1009/02 - 2 - police jeep, the accused got preplexed and attempted to make himself scarce. He was intercepted and the can and the bottle in his possession were examined. The can contained 2.5 litres and the plastic bottle 1.5 litres of arrack. Samples of 350 ml each were collected from the can and the plastic bottle separately in two bottles, and sealed at the spot. Samples collected and the residue were seized into custody, preparing Ext.P1 mahazar. The accused was arrested; and, returning to the Station with him and the contraband seized, Ext.P4 crime was registered for the offences punishable under Section 55 (a) and (i) of the Act. The accused, after production before the court, was enlarged on bail. The investigation of the crime was taken over by PW5, then, Circle Inspector of Police, Erattupetta, and after completing the investigation, he laid the charge indicting the accused for the offences punishable under Section 55 (a) and (i) of the Act. 3. After committal of the case to the Sessions Court, Kottayam, and it being made over to the Additional District and Sessions Judge Fast Track Court (Adhoc) -II, Kottayam, for trial and disposal the accused pursuant to the summons appeared before that court. The learned Sessions Judge, after complying with the formalities, framed Crl.A.No.1009/02 - 3 - charges against the accused for the offences under Section 55 (a) and (i) of the Act, to which he pleaded not guilty. Prosecution examined Pws.1 to 5, got marked Exts.P1 to P5 and identified Mos1 and 2 to prove his case. The accused, when questioned under Section 313 Cr.P.C., inviting his attention to the incriminating circumstances appearing in the prosecution evidence against him seeking explanation, if any, thereof, maintained his innocence and set forth the defence that the case has been foisted against him on false allegations in view of political animosity. Though such a defence was canvassed, no evidence was adduced in support thereof. 4. The learned Additional Sessions Judge, after considering the materials produced in the case, found the accused guilty of the offences under Section 55 (a) of the Act, and he was convicted of that offence and sentenced as indicated above. The other offence imputed under Section 55 (i) of the Act was found not established and he was acquitted of that offence. 5. I heard the learned counsel for the accused and also the learned Public Prosecutor. Conviction of the accused for the offence under Section 55 (a) of the Act is assailed by the learned counsel contending that it is thoroughly unsustainable as not supported by Crl.A.No.1009/02 - 4 - legal evidence. There was no evidence in the case other than that of the police officials to connect the accused to the crime; and, in view of the specific defence raised by the accused that he had been falsely implicated and the case had been foisted against him on account of political animosity it is submitted that the court below went wrong in founding the conviction against him on the basis of the evidence of the police officials alone without corroboration from any other independent evidence. Submitting Pws.1 and 2, the two independent witnesses cited by the prosecution to prove the seizure had turned hostile to its case it is also canvassed by the learned counsel that a vital material circumstance in the evidence discredit the prosecution case. Inviting my attention to the evidence of PW3, the police constable, who accompanied PW4, the S.I. of Police and was present when the detection of the offence and the seizure of the contraband were made, the learned counsel for the accused submitted that the witness had given a conflicting version that the arrack was carried by the accused in a 'jar' whereas, the prosecution case was it was a 'can'. There is much difference between the jar and a can, contends the counsel. The material discrepancy regarding the vessel in which the arrack was alleged to have been kept by the accused, in his Crl.A.No.1009/02 - 5 - possession, according to the counsel, cuts at the root of the prosecution case. The evidence of PW3 would also indicate, according to the counsel, two pint bottles collected from a nearby house had been used for collecting samples from the contraband seized. Presence of ethyl alcohol in the pint bottles used for collecting samples could not be ruled out, and as such, the procedure followed in the case for collecting samples was highly irregular and illegal and it has vitiated the trial, is the submission of the learned counsel. There was inordinate delay in the production of the contraband before the court, for which, no explanation was offered, is another challenge raised by the counsel to assail the conviction. Contraband was seized on 13.10.2000, but, it reached the court only on 21.11.2000, and the analysis over the sample forwarded to the laboratory through the court was carried out a month's later, submits the learned counsel. The explanation offered by PW4, the S.I. of Police, that he had retained the contraband till its production before court does not lend assurance to hold that the residue and sample remained untampered, and the long delay in the production of the contraband before the court, according to the learned counsel, is a materials circumstance vitiating the trial as well. The learned counsel Crl.A.No.1009/02 - 6 - relied on Dominic v. State of Kerala (1989 (1) KLT 601), Narayani v. Excise Inspector (2002 (3) KLT 725), Rajendran v. State of Kerala (2007 (1) KLT 971) and Muraleedharan v. S.I. of Police (2007 (2) KLT 662) to contend that consistently this Court has taken a view that delay in production of the contraband seized and sample collected before the court and sending of the sample for analysis, is fatal to the prosecution case unless such delay has been properly explained to vouchsafe that the residue and sample remained in safe custody untampered till its production before the court. The prosecution in the present case has not offered any explanation for the delay in production of the residue and the sample, according to the counsel. The delay caused in production is fatal to the case and the conviction is liable to be set aside on that ground as well. 6. I have perused the records of the case giving consideration to the submissions made by the learned counsel. I cannot agree with the proposition canvassed by the learned counsel that the evidence of the police officials for its acceptance require corroboration from independent witness simply for the reason that the accused had raised a contention that the case had been foisted against him on account of political animosity. Merely because the witnesses are Crl.A.No.1009/02 - 7 - police officials, their evidence cannot be viewed with doubt or suspicion on a plea set up by the accused that he had been framed in the case. It is for the accused to show that there is some basis for such a defence and in case he succeeds in showing any circumstance on the materials produced that the case pleaded by him is probable, then, ofcourse, the evidence of the police officials has to be subjected to critical scrutiny for its acceptance. A vague plea or suggestion without anything more imputing that the accused had been framed deserve to be taken note of only for its rejection. The evidence of police official deserve to be appreciated applying the same yardstick as in the case of any other witness examined before the court. The learned Sessions Judge, who had recorded the evidence of Pws.3 and 4 had found their testimony reliable, trustworthy and acceptable. Nothing worthmentioning has been brought out during the cross examination of those witnesses to indicate that any of them had any grouse or animosity towards the accused. Suggestion made to PW4 that the case has been foisted against the accused on account of the pressure from a ruling party was refuted by that witness. Both Pws.3 and 4 have given evidence before the court that the accused was apprehended on finding him with possession of a can and plastic Crl.A.No.1009/02 - 8 - bottle, both, containing illicit arrack, in a public pathway. Their evidence is corroborated by Ext.P1 mahazar, a contemporaneous record prepared over the seizure of the contraband. The attestors of Ext.P1 mahazar had turned hostile in no way affect the merit of the prosecution case. There is some discrepancy in the evidence of PW3 with respect to one of the vessels carried by the accused, as canvassed by the learned counsel, is found to be of no merit. PW3 had referred to the can as a jar while giving evidence before court was projected to contend that it amounts to a serious discrepancy. He has identified MO1 jar and also MO2 plastic bottle before the court. Reference to the can as jar by PW3, it could be seen, was only a colloquial usage of that vessel. When PW3 was in the box no attempt was made to show that can and jar are different, and jar referred by him in his evidence does not relate to the can seized from the accused, which was identified by him as MO1. The argument advanced that there is discrepancy regarding one of the vessels in which the contraband was carried, in the evidence of Pw3, has no basis or value at all. The delay in production of the contraband before the court is fatal to the prosecution and it has vitiated the trial, the challenge raised by the counsel to assail the conviction, also Crl.A.No.1009/02 - 9 - cannot be accepted as true and correct. Mere delay without anything more is hardly sufficient to vitiate the trial. What prejudice, if any, has been caused to the accused by such delay in production also requires to be examined. In the present case, PW4, the S.I. of police has given evidence that the contraband remained in his safe custody till its production before the court. There was no reason to doubt his evidence that it remained in his safe custody and there was no tampering till its production. At any rate, no circumstance whatsoever is available in the records nor shown that, any prejudice has been caused to the accused by the delay in production of the contraband before the court. So, that challenge raised by the counsel to assail the conviction also fails. The proved facts and circumstances of the case reveal in unmistakable terms that the accused carried in his possession arrack, a prohibited contraband, without any authority. Ext.P4 analysis report would show that one of the vessels contained spirit and the other arrack. Accused has not accounted for the possession of the contraband seized from his custody and in such circumstances, his conviction under Section 55 (a) of the Act by the court below deserves only to be upheld, and I do so. Crl.A.No.1009/02 - 10 - 7. As regards the sentence, having regard to the age of the accused, the quantity of liquor seized from his possession, and also in the records there is nothing to indicate that he is not a first offender, the substantive term of imprisonment imposed by the learned Sessions Judge can be reduced limiting it to one year, retaining the mandatory fine with default term with imprisonment. So much so, sentence imposed against the accused is modified, directing him to undergo rigorous imprisonment for one year and to pay fine of Rs.1 lakh with default term of simple imprisonment for two months more for the offence under Section 55 (a) of the Act. The appeal is partly allowed. srd S.S. SATHEESACHANDRAN, JUDGE