IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 CRL.A.No. 1995 of 2003() ------------------------ SC.194/2000 of ADDITIONAL SESSIONS JUDGE (AD-HOC-II), KASARAGOD .................... APPELLANT/ACCUSED: -------------- A.ASHRAF, AGED 26 YEARS, S/O.MUHAMMED, BELLOOR HOUSE, P.O., MOGRAL PUTHUR, KASARAGOD DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.K.P.HARISH RESPONDENT/COMPLAINANT: --------------- STATE – REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR, S.SURESH. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.S.GOPINATHAN, J. --------------------------------- Crl.A.No.1995 OF 2003 ---------------------------------- Dated this the 11th day of November, 2011 J U D G M E N T ~~~~~~~~~~~ Appellant is the accused in Sessions Case No.194/2000 on the file of the Additional Sessions Judge (Adhoc-II) Kasaragod. PW4, the Sub Inspector of Traffic Police, filed a chargesheet against the appellant alleging offence under Section 55(a) of the Abkari Act. According to the prosecution, at 2 a.m. On 12.11.1998, PW3, the Sub Inspector of Police, Kasargod, got reliable information that the appellant had been dealing illicit arrack at Ujeerkara. PW3 along with the party proceeded to the spot and found that the appellant was standing by the side of a Scooter bearing Registration No. KRC.365 near Ujeerkara Post Office along the side of Ujeerkara - Bathiyadaka road. On inspection, it was found that a sack was kept over the platform of the Scooter . MO3 produced before the trial court is the sack that contained 300 plastic packets, each containing 100 ml of illicit arrack. The appellant was arrested for which Ext.P2 arrest memo was prepared. The packets of arrack were seized for which Ext.P3 seizure memo was prepared. 8 packets were Crl.A.No.1995/2003 2 opened and taken as sample in two bottles and sealed it then and there. MO2 series are the empty packets. MO1 series are the remaining 292 packets of arrack. Returning to the Police Station, a case was registered for which Ex.P4 First Information report was prepared. Ext.P5 is the property list. The material objects were produced before the local Magistrate along with a forwarding note, copy of which was marked as Ext.P6. The sample bottles were sent for chemical examination. By Ext.P7, the Chemical Examiner reported that samples contained 32.65% by volume of Ethyl Alcohol. The investigation was taken over by PW4, who after completing the investigation, submitted the chargesheet before the Judicial Magistrate of the 1st Class, Kasaragod. 2. The learned Magistrate on finding that the offence alleged is triable by a court of session, committed the case to the court of session, Kasaragod, from where it was made over to the Additional Sessions Judge. The appellant pleaded not guilty to the charge when framed and read over to him. On the side of the prosecution, PWs 1 to 4 were examined. Exts.P1 to P7 and Crl.A.No.1995/2003 3 MOs 1 to 3 were marked. The appellant took a defence that while he sleeping at his home, he was taken custody by the police and that the case was falsely foisted. No defence evidence was let in. The learned Additional Sessions Judge, on appraisal of the evidence, arrived at a conclusion of guilt. Consequently, he was convicted and sentenced, assailing which, this appeal is preferred. 3. The learned counsel for the appellant and the learned Government Pleader were heard. Perused the judgment impugned and the records. PW1, an attestor to Ext.P3 seizure mahazar, turned hostile to the prosecution. PW2 is only an attestor to Ext.P1 scene mahazar. The sole evidence available is that of PW3, the detecting officer. PW4 speaks about the investigation. PW3 had deposed that on getting reliable information, he proceeded to Ujeerkara at 2 a.m. on 12.11.1998 and that the appellant was found standing by the side of scooter bearing Reg.No.KRC-365 near the Ujeerkara Post Office. On inspection, it was found that 300 packets of arrack were kept inside MO3 sack over the platform of the scooter and all the Crl.A.No.1995/2003 4 packets were seized. The appellant was arrested. MOs 1 and 2 were identified. He had also deposed that from 8 packets he took samples in two bottles and the bottles were sealed then and there. Ext.P6 report of the Chemical Examiner would show that on analysis, the sample contained 32.65% by volume of Ethyl Alcohol. There is no reason to reject the report. The learned counsel for the appellant submitted that there is 5 days delay in forwarding the property to the Magistrate and that the copy of the forwarding note does not contain the specimen seal. Whereas in Ext.P7 report of the Chemical Examiner there is mention that the bottles were sealed, the seals were intact and tallied with the specimen impression of the seal. That report in Ext.P7 was not at all assailed. Therefore, what is to be presumed is that in Ext.P6, there is omission to affix the specimen impression of the seal. Such omission in the light of the evidence of PWs 3 and 4 doesn't appear to be very significant. So also, the delay of 5 days in forwarding the material objects to the Magistrate does not appear to be very significant because, 292 packets produced before the Magistrate remained intact even during the trial. The sealed sample bottles were also sent intact Crl.A.No.1995/2003 5 to the Chemical Examiner. 4. In the above circumstance, there is nothing on record to come to a conclusion that there was any tampering with the material objects. On a critical reappraisal of the evidence of PW3, I find that the witness had withstood the cross examination. No material was disclosed to disbelieve him. There is no allegation that PW3 had any animosity against the appellant so as to cook up a false case. The evidence of PW3, as opined by the learned Additional Sessions Judge, is convincing. I find no good reason to interfere with the finding of the learned Additional Sessions Judge. The conviction is based upon cogent evidence and requires no interference. Taking note that the appellant was only 21 years old at that time and that there is no bad antecedent and that there is no case that he is subsequently involved in similar offence, I find that the appellant is entitled to a little leniency in sentence and that a substantive sentence of simple imprisonment for six months with the minimum fine imposed by the trial court would meet the ends of justice. Crl.A.No.1995/2003 6 In the result, the appeal is allowed in part. While confirming the conviction, substantial sentence is reduced to simple imprisonment for six months. The fine imposed by the trial Judge is sustained with default sentence. Under trial imprisonment, if any, shall be set off. Trial court shall see execution of sentence and report compliance. (P.S.GOPINATHAN, JUDGE) ps/15/11