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. 1243 of 2002 ------------------------ ( SC.678/1999 ON THE FILE OF THE ADDL. SESSIONS JUDGE (ADHOC) II, KASARAGOD.) APPELLANT: ACCUSED: ---------------------------------- PRAKASHAN, S/O. KUNHANNA RAI, NEDUKALA HOUSE, NEERCHAL VILLAGE, KASARGOD TALUK. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS: COMPLAINANT AND STATE: ------------------------------------- 1. INSPECTOR, EXCISE RANGE, KASARAGOD. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. 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. APPEAL NO. 1243 OF 2002 = = = = = = = = = = = = = DATED THIS, THE 11TH DAY OF NOVEMBER, 2011. J U D G M E N T Appellant, who is the accused in S.C. 678 of 1999 on the file of the Additional Sessions Judge (Adhoc) II, Kasaragod., was convicted for offence under Section 55 (a) of the Abkari Act and sentenced to rigorous imprisonment for one year and a fine of Rs. one lakh with a default sentence of rigorous imprisonment for six months. Assailing the above conviction and sentence, this appeal is preferred. 2. The prosecution case in brief is that at 5 p.m. on 18.11.1998, while PWs 1 and 5, two preventive officers attached to Kasaragod Excise Range, were moving on patrol duty along Kumbla Badiadukka road near Belar Post Office, the appellant was found coming with a plastic can of 10 litre capacity which was marked as M.O.1. Seeing PW.1 and party, the appellant got puzzled. Suspecting that the appellant was carrying some contraband article, he was intercepted. The contents in M.O.1 was inspected and found that it contained five litres of country arrack. The nature of the liquid was tested by smell and taste. The appellant was arrested for which Ext.P1 arrest memo was prepared. M.O.1 with the country arrack was seized for which Ext.P2 seizure mahazar was prepared. From the country arrack, 300 ml. was CRL.A. 1243/2002 2 taken in a sample bottle. The sample bottle as well as M.O.1 with the remaining liquid was sealed. After returning to the office, a case was registered for which Ext.P3 occurrence report was prepared. Ext.P4 is the property list. On the following day, M.O.1 and the sample bottle were forwarded to the local magistrate along with Ext.P4 property list and Ext. P5 forwarding note. At the request of the Excise Inspector, sample bottle was forwarded to the Chemical Examiner. After examination, the Chemical Examiner issued Ext.P6 certificate wherein it is certified that the sample contained 53.7% of ethyl alcohol by volume. After completing the investigation, charge sheet was submitted before the Judicial Magistrate of the First Class, Kasaragod. Finding that the offence is triable by a court of session, the magistrate committed the case to the Court of Session from where it was made over to the Additional Sessions Court (Adhoc)-II, Kasaragod. 3. The appellant who appeared before the Additional Sessions Judge in response to the process issued, pleaded not guilty when the charge framed was read and explained. Therefore, the appellant was sent for trial. On the side of the prosecution, PWs 1 to 5 were examined. Exts. P1 to P6 and M.O.1 were marked. After closing the evidence for the prosecution, the appellant was questioned under Section 313 of the Code of Criminal CRL.A. 1243/2002 3 Procedure. He denied the incriminating evidence and further stated that police party enquired him whether he was aware of the persons who were dealing with arrack and when he stated that he was not aware, he was taken into the jeep and a case was registered. However, no defence evidence was let in. On appraisal of the evidence on record, the learned Additional Sessions Judge arrived at a conclusion of guilt consequent to which the appellant was convicted and sentenced as stated above. 4. I have heard Advocate Sri. T.G. Rajendran, appearing for the appellant and Sri. S. Suresh, the learned Public Prosecutor. Perused the impugned judgment as well as the evidence on record. 5. PWs 1 and 5, two preventive officers who detected the crime would depose that at about 5 p.m. on 18.11.1998 while they were moving on patrol duty, the appellant was found carrying M.O.1 can near the Belar Post office along the Kumbla - Badiadukka road and that feeling suspicious M.O.1 was inspected and found containing five litres of illicit country arrack. The nature of the liquid was tested by smell and taste and confirmed that it was country arrack. Thereupon the appellant was arrested after preparing Ext.P1 arrest memo and that the material objects were taken to the office and registered a case. PWs 2 and 3 are attestors to Ext.P2 seizure mahazar. Though they had denied the arrest and seizure of the contraband CRL.A. 1243/2002 4 article from the appellant, they admitted their signatures in Ext.P2. Ext. P1 arrest memo also would show that they are witnesses to the arrest. Since PWs 2 and 3 had not supported the arrest and seizure, I had a critical scrutiny of the evidence of PWs 1 and 5. Except some minor discrepancies here and there, there is no reason to disbelieve PWs 1 and 5. There is no case for the appellant that PWs 1 and 5 were anyway ill-motivated so as to cook up a false case against the appellant. Learned counsel for the appellant heavily assailed the evidence of PWs 1 and 5 stating that there is no whisper in their evidence that they were carrying stamp pad so as to take the thumb impression of the appellant or that they were carrying the seal for sealing the material objects. It is true that there is no such evidence. According to the learned Public Prosecutor, PWs 1 and 5 were carrying an inspection kit containing necessary materials for sealing the sample, taking thumb impression etc. while moving on patrol duty. I find merit in the submission made by the learned Public Prosecutor. Adding to that, such minute details are not at all necessary to be spoken in chief examination. Unless otherwise established, in view of Section 114 (e) of the Evidence Act, it is to be presumed that official acts have been performed regularly and in good faith. There is no material to come to a conclusion that there was anything to doubt about the regular performance of the officials. The learned CRL.A. 1243/2002 5 Additional Sessions Judge, who had the occasion to watch the demenour of PWs 1 and 5, after analyzing the evidence, arrived at a conclusion that their evidence is credit worthy. On a re-appraisal, I find no reason to arrive at a divergent conclusion. Therefore, I find no reason to disbelieve PWs 1 and 5. 6. Learned counsel for the appellant submitted that though M.O.1 ought to have contained 4700 mls. of country arrack after sampling at the time when the evidence was taken, there was only 200 mls. of arrack. It is true that portion of the liquid contained in M.O.1 was missing at the time of evidence. But that is not at all a reason to reject Ext.P6 analysis report. Ext.P5 forwarding note and Ext.P6 would show that sample was produced before the learned Magistrate on the next day itself. It was forwarded for chemical examination on 8.3.1999 and it was received by the Chemical Examiner on 9.3.1999. The Chemical Examiner had specifically certified that the sealed bottle contained 300 ml. of clear colourless liquid and that the seal of the bottle was in tact. As against this report, learned counsel for the appellant submitted that in Ext.P5, there is no specimen seal. Admittedly, Ext.P5 is an office copy of the forwarding note. Even if there is omission to affix the seal in the copy, that is not at all a reason to reject the certificate of the Chemical Examiner. In Ext.P6, as mentioned earlier, it is certified that the sample contained 53.7% by volume of ethyl alcohol. CRL.A. 1243/2002 6 There is no reason to reject Ext.P6. Therefore, the learned Sessions Judge was right in coming to the conclusion that the prosecution had succeeded to establish that the liquid seized from the appellant was country arrack. The conviction under challenge is based upon cogent evidence and unassailable. 7. Taking note that the appellant was aged 28 years as on the date of occurrence and that there is no report regarding any bad antecedent or subsequent involvement, I find that the appellant is entitled to a little leniency in the matter of sentence and that the substantive sentence can be reduced to rigorous imprisonment for six months. The fine amount awarded is the minimum and requires no interference. In the result, the appeal is allowed in part. While confirming the conviction, the substantive sentence is reduced to rigorous imprisonment for six months. The fine imposed by the Sessions Judge is sustained with default sentence. The trial court shall see execution of sentence and report compliance. P.S. GOPINATHAN, (JUDGE) knc/-