IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 CRL.A.No. 1944 of 2007() ------------------------ SC.275/2004 of the Additional Sessions Court (Abkari) Kottarakkara .................... APPELLANT(S): -------------- MONY @ ANAMONY C.NO. 564 CENTRAL PRISON, TRIVANDRUM BY ADV. G.G.MANOJ[STATE BRIEF] RESPONDENT(S): --------------- STATE OF KERALA REPRESENTED BY A PUBLIC PROSECUTOR PUBLIC PROSECUTOR SMT. LAKSHMI RANI K.L THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/11/2008, THE COURT ON 26/11/2008 DELIVERED THE FOLLOWING: V.K. MOHANAN, J. --------------------------------------------------- CRL.APPEAL No. 1944 OF 2007 --------------------------------------------------- Dated this the 26th day of November, 2008 J U D G M E N T This appeal is filed against the judgment dated 08.11.06 in Sessions Case No. 275/04 of the Court of Additional Sessions Judge (Abkari), Kottarakkara. By the impugned judgment the accused is found guilty u/s 55 (a) and (i) of Abkari Act and accordingly he is sentenced to under to Rigorous Imprisonment for 2 years and to pay fine Rs.1,00,000/- in default of payment of fine to under go Rigorous Imprisonment for 3 months for the offence u/s 55 (a) of Abkari Act. Set off is allowed u/s 428 of Cr.P.C. It is the above conviction and sentence challenged in the appeal. 2. Prosecution case is that accused was found in possession and engaged in sale of 3 litres of arrack in 10 litres capacity black can on 29.07.02 at 4.30 P.M. in the railway purambokke near 13 Kannara bridge at MSL Thenmala. To prove the prosecution case PW1 to 4 were examined and Ext.P1 to Ext.P7 were marked and M.O.1 and M.O.2 were identified and marked. During the defence evidence PW4 was recalled and Ext.D1 was marked. On the basis of rival pleadings and contentions 3 issues were framed by the court below for consideration. Court found that CRA No.1944/2007 : 2 : accused guilty and accordingly he was sentenced. It is the above conviction and sentence challenged in this appeal by way of jail appeal as he is undergoing imprisonment in the jail. 3. To prosecute the appeal a state brief was appointed and I heard the learned counsel for the appellant and also the Public Prosecutor. 4. PW4 is the S.I. of Police, Thenmala police station who detected the offence. Along with PW4, PW3 was also in the party. PW4 has deposed that while he was on patrol duty on 29.07.02 in the evening, he got information that accused engaged in the sale of arrack on the rear side of his house and accordingly they proceeded to the scene of occurrence along with CW1 and 2. When they reached sport, they found accused holding M.O.1 and 2 and on seeing the party he tried to ran off towards the north. Though he was chased, he could not apprehended. The jerry can was seized in the presence of witnesses. The contents of the can identified as arrack by smelling and tasting and witnesses were also convinced the same. By drawing Ext.P1 mahazar samples were drawn and the witnesses were put their signature. Thereafter, PW5 returned to the police station and registered crime 216/02 of Thenmala Police station for the offences u/s 55(a) and (i) of the Abkari Act. Ext. P2 is CRA No.1944/2007 : 3 : the F.I.R. PW4 had categorically stated he had prior acquaintance with the accused. The contraband articles were entrusted with station writer and the same were produced before the court on 08.08.02. Ext.P5 is the requisition for sending the article for chemical analysis. Ext.P6 is the corresponding forwarding note. As part of investigation, the accused was arrested at about 12.15 P.M. on 20.08.02 and Ext.P7 is the custody memo. According to PW4 he is convinced, that accused is a full time seller of arrack and had precedents. PW4 finally laid charge. When PW3 had examined, he deposed in terms of PW4. PW1 and 2 admitted their signatures in Ext.P1 and also admitted that they got acquaintance with the accused. 5. The learned counsel for the appellant submitted that the accused was falsely implicated in the the crime and there was no proper sampling. It is also the case of the appellant that material objects were planted by the prosecution. The trial court after considering the entire facts and circumstances and the appreciation of the evidence has held that testimony of PW3 and 4 together with Ext.P1 mahazar would reveal that contraband articles were seized from the scene of occurrence. Though PW1 and 2 turned hostile, they stated that they got acquaintance with the accused and also CRA No.1944/2007 : 4 : admitted their signatures in Ext.P1. According to the trial court, even though PW1 and 2 turned hostile to the prosecution, certain portion of their evidence corroborate with the evidence of PW3 and 4. Going by the documentary evidence, especially, Ext.P1, P3 and P6 it can be seen that sample drawn from M.O.1 jerry can and on analysis it is certified that sample contained ethyl alcohol at 0.92 % by volume. On the basis of the fact that percentage of ethyl alcohol is very low in the sample collected, it is argued that material objects were planted by the prosecution after pouring water from the adjacent river in the jerry can. In this case, it is clearly proved by the prosecution that the contraband articles were seized from the can possessed by the accused, when he run away from the spot after abandoning the can. The seizure and sampling are proved on the strength of the evidence of PW4, PW3 and also independent witnesses i.e. PW1 and PW2 and the evidence of these witnesses are corroborated by the contemporary document namely Ext.P1. Of course defence has got a case that the material objects were produced before the court only on 08.08.02 and there is inordinate delay, which will go against the prosecution. From the evidence involved in the case, it can be seen that material objects were entrusted with the investigation agency for proper custody and there CRA No.1944/2007 : 5 : is no adverse evidence to hold that the articles were not kept in proper custody. On the strength of the decision held by this court in Narayani Vs. Excise Inspector (2002 (3) KLT 725), the trial court has held that there is no delay and there is no chance for tampering so as to cause any prejudice to the accused. One of the contention advanced by the defence is that M.O.1 not contains the label and its seal was a new one and therefore no value can be attached to such a material. But the trial court on the basis of Ext.P5 and Ext.P6 has held that immediately after the seizure, requisition was made before the court for sending the sample for chemical analysis. So according to the court, testimony of PW3, PW4 together with Ext.P1, Ext.P3 to Ext.P7 would reveal that the seal on the sample bottle was intact and there is no scope for any tampering. 6. On the strength of Ext.D1 which is the copy of records in crime 319/01 of Thenmala Police Station, it is a case registered against the accused u/s 225(B) and 333 of IPC, the accused was arrested in that crime on 19.02.01 at 4.45 A.M. But the trial court on the basis of testimonies of PW3 and PW4 hold that they have prior acquaintance with the accused and found that it was the accused who ran away from the scene of occurrence on seeing the raiding party. In the present case, accused was arrested at 12.15 hours on CRA No.1944/2007 : 6 : 20.08.02 and the intimation regarding the arrest was given to the wife of the accused. Thus the trial court, the case of defence, on the basis of Ext.D1, with respect to the arrest, rejected. Thus, the court found that accused is guilty u/s 55 (i) of the Abkari Act. I find, no reason to interfere with the above evidence and the conviction. 7. Though the counsel for the accused pressed for a lenient approach in the matter of sentence, I find no reason to interfere with the sentence, since the sentence awarded is only 2 years Rigorous Imprisonment and to pay fine of Rs.1,00,000/- which is the minimum fine amount fixed by statute. 7. In the result, there is no merit in the appeal and accordingly the same is dismissed. (V.K. MOHANAN, JUDGE) kmd