IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 9TH SEPTEMBER 2010 / 18TH BHADRA 1932 CRL.A.No. 139 of 2008() ----------------------- SC.33/2007 OF OF ADDL.SESSIONS COURT (ABKARI CASES), KOTTARAKKARA) .................... APPELLANT(S): -------------- GOPALAN, C.NO.1996, CENTRAL PRISON, TRIVANDRUM. BY ADV. ADV.LIJU.M.P(STATE BRIEF) RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. PUBLIC PROSECUTOR SRI.C.M.CHARISMA THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 09/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. Appeal No. 139 of 2008 ----------------------------------------------- Dated 9th September, 2010. JUDGMENT This appeal arises from the conviction and sentence passed against the appellant for offences under Sections 8 (1) and (2) of Abkari Act. The appellant was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs,.1,00,000/- and in default of payment of fine to undergo rigorous imprisonment for six more months. 2. According to prosecution, on 11.6.2006 at about 6.12 p.m. while PW3, the Preventive Officer, was proceeding for abkari raid, he found the accused carrying a Can and walking near a culvert. He was apprehended from the spot and, on search, he was found in possession of a Can which contained about 5 litres of arrack. On examination of the contents of the Can MO1 by taste and smell, it was found to be arrack. The accused was arrested from the spot. Two [Crl.A.No.139/2008] 2 samples were drawn from the arrack seized and Ext.P1 mahazar was prepared in the presence of independent witnesses PWs 1 and 2. The contraband articles were seized from the spot. A crime was registered by PW4, the Assistant Excise Inspector, against the accused. The sample was sent for analysis and Ext.P8 is the Chemical analysis report. PW5, the Excise Inspector investigated the crime and filed the charge. 3. To prove the prosecution, PWs 1 to PW5 were examined and Exts.P1 to P8 and MO1 were marked. On an analysis of the evidence adduced by the prosecution, learned Addl. Sessions Judge held that the prosecution proved that the accused was in possession of the contraband article for the purpose of sale. No contra evidence was let in to rebut the presumption under Section 64 of the Evidence Act. According to trial court, the testimony of PW3 together with Exts.P1 and P2, reveal that the contraband articles were actually seized from the scene and that Exts.P5 to P8 reveal that MO1 contained arrack. [Crl.A.No.139/2008] 3 4. The appellant was undefended and hence, Shri. Liju M.P. was appointed as State Brief. It was submitted by both sides that appellant was released from jail on 14.10.2009, after serving the sentence. According to learned counsel for appellant, evidence of PWs 1 and 2 will not support the prosecution. It is also argued that only one sample was sent for analysis, though prosecution case is that two samples were taken from the spot. The independent witnesses have no case that the samples were taken from the spot. There is no evidence to show that the samples were kept intact at the Excise Office before sending it for analysis. Evidence is lacking on this aspect. For these reasons, conviction and sentence are unsustainable, it is submitted. 5. Learned Public Prosecutor submitted that evidence of PW3 shows that the accused was found in possession of arrack and sample was also taken from the arrack seized from his possession. Material objects were also produced in court on the very next day and there is nothing to establish that the articles are tampered with. [Crl.A.No.139/2008] 4 6. On hearing both sides and on going through the order under challenge and the records, I find that to prove the occurrence, prosecution examined PWs 1 to 3. According to PW3, while he was engaged in abkari raid on the date of occurrence, he found the accused walking close to a culvert, carrying a Can and, on search, it was found to contain an article which was tested by smell and taste. Samples were taken. The Can and the contents were seized. The mahazar Ext.P1 was prepared at the scene. 7. The accused has no case in cross-examination that PW3 is motivated to perjury against him. Though the accused flatly denied the incident and contended that he was arrested from his house, nothing was suggested to PW3 or any other official witness or eye witness as to why they should falsely foist a case against him. PW3 is the Preventive Officer, who detected the crime. PW4 is the Assistant Excise Inspector before whom the documents and articles etc. were produced. PW5 is the Excise Inspector, who has conducted the investigation and laid the charge. The cross-examination of none of these witnesses [Crl.A.No.139/2008] 5 would reveal that they are in any way motivated against the accused to falsely implicate him. 8. There is no rule that the evidence of an official witness has to be rejected for the sole reason that he is an official witness. No court shall reject the evidence of an official witness merely because he happens to be an official. PWs 1 and 2 are independent witnesses, who signed Ext.P1. They were examined in court and they admitted their signatures in Ext.P1. Though the various details regarding search, seizure and arrest were not spoken to by PWs 1 and 2 in chief-examination, in cross- examination it was bought out from PW2 that the mahazar was prepared for seizure of arrack from the accused. In the above circumstances, I find the evidence of PW3 is corroborated by the evidence of PWs 1 and 2 to a certain extent. Contemporaneous documents are also prepared and produced before the court which will also confirm the veracity of the evidence given by PW3. 9. Apart from this, the sample was drawn from the arrack which was found in MO1 was sent for analysis and [Crl.A.No.139/2008] 6 report Ext.P8 also supports the prosecution case. Though the learned counsel for accused would argue that there is no evidence to show that the articles were preserved property before sending for analysis, I find that such non-examination or omission to examine the witness would not affect the veracity of the prosecution case, as pointed out by learned Public Prosecutor. Because, the seizure was effected at about 6.15 p.m. and the articles were produced before the court on the very next day. 10. The articles were kept in the court and there is little chance to normally tamper with from the custody of the court. In the absence of any materials on record to cast a doubt that any tampering was effected, the non-examination of the person who kept the article in custody is not fatal. On an analysis of the evidence as a whole, I am fully satisfied that there is no infirmity in the findings of the trial court and the conviction is only to be confirmed. Sentence is only for a period of two years and to pay a fine of Rs.1,00,000/- I do not think the sentence is excessive. The sentence is also suffered by the appellant. [Crl.A.No.139/2008] 7 In the result, the conviction and sentence are confirmed. This appeal is dismissed. krs K. HEMA, JUDGE.