IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 6TH APRIL 2009 / 16TH CHAITHRA 1931 Crl.Rev.Pet.No. 3245 of 2005() ----------------------------------------- CRA.303/2001 of ADDL.SESSIONS COURT,-I, MAVELIKKARA CC.357/1997 of JUDL.MAGISTRATE OF FIRST CLASS, KAYAMKULAM .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------- SANKARAN, S/O. KESAVAN, PRAKASH BHAVANAM, ELIPPAKULAM MURI, VALLIKUNNAM VILLAGE, MAVELIKARA. BY ADV. MR.R.GOPAN RESPONDENT/RESPONDENT/COMPLAINANT: ----------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/03/2009, THE COURT ON 06/04/2009 PASSED THE FOLLOWING: Crl.Rev.Pet.No. 3245 of 2005 ORDER ON CRL.MA. NO.21752/2005 IN CRL. RP.NO.3245/2005 DISMISSED 06/04/2009. S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.S. TO JUDGE Rs/ S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.R.P.NO.3245 OF 2005 () ----------------------------------- Dated this the 6th day of April, 2009 O R D E R Challenge in the revision is against the concurrent verdict of guilty rendered against the revision petitioner/accused for the offence punishable under Section 55 (b) of the Kerala Abkari Act, for short, the 'Act'. He was prosecuted for the offences punishable under Section 55 (a) and (g) of the Act. He pleaded not guilty. The learned Magistrate, after trial, found the accused guilty of the offence under Section 55 (b) of the Act, and accordingly, convicted him thereunder. He was sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs.25,000/- with default term of simple imprisonment for six months. The Sessions Judge, in appeal, confirmed the conviction and sentence without any modification. Aggrieved by the above, the accused has preferred this revision questioning the legality, propriety and correctness of the conviction and CRL.R.P.3245/05 2 sentence. 2. The prosecution case is that PW5, the Sub Inspector of Police, Vallikkunnam got reliable information on the early morning of 18.4.1996, that the accused was engaged in distillation of arrack in a shed beside his residential building. With a police party, PW5 rushed to the spot and, reaching there, found the accused engaged in distillation process of arrack in an open shed beside his house. The utensils used for distillation of the arrack and plastic cans containing illicit arrack and another vessel having 20 litres of wash were seized into custody preparing Ext.P1 mahazar in the presence of the accused. The accused arrested, after production before the court, was later enlarged on bail. After investigation of the crime, PW4, the then S.I of Police laid the charge against the accused before the court for the offences punishable under Section 55 (a) and (g) of the Act. 3. The accused pleaded not guilty to the offence when the charges were made known. Prosecution examined PWs.1 CRL.R.P.3245/05 3 to 5, got marked Exts.P1 to P4 and identified Exts.P1 to P6 to prove his case. The accused maintained his innocence when questioned under Section 313 of the Cr.P.C. No defence evidence was adduced. The learned Magistrate, after appreciating the materials, found him guilty of the offence under Section 55 (b) of the Act, and accordingly he was convicted and sentenced as indicated. The appeal preferred against the conviction has not been successful as the Sessions Judge concurred and upheld the conviction and sentence. Hence, he has come up with this revision. 4. I heard the learned counsel for the accused and also the learned Public Prosecutor. The main thrust against the conviction launched by the learned counsel for the accused is that there was no independent evidence to prove that the accused was engaged in the manufacture of illicit arrack and also the seizure of the contraband as alleged by the prosecution. The uncorroborated version of the Police officials, PWs.3 and 5, who were involved in the detection of the crime and also seizure, according to the counsel, without CRL.R.P.3245/05 4 corroboration should not have been acted upon to find the conviction against the accused for a grave offence under the Act. Prosecution case is also assailed by the counsel contending that the search leading to the seizure of the contraband, as alleged by the prosecution, is vitiated by illegality in view of the noncompliance of the mandatory provisions under the Act in carrying out a search over the building. No memorandum of search was prepared before carrying out the search and intimation thereafter forwarded to the Court nor any search list over the seized articles was prepared and thus the provisions under Sections.31 and 36 of the Act are violated by PW5, the S.I of police, who carried out the search and effected the seizure, is the submission of the counsel. Search was conducted by PW5 is against the provisions under the Excise Manual, which regulate the mode of conducting searches, is the submission of the counsel inviting my attention to the relevant provisions of that manual. The learned counsel also relied on K.L.Subhayya v. State of Karnataka (AIR 1979 SC 711) to contend that when a search had been conducted violating the mandatory provisions CRL.R.P.3245/05 5 stipulated by Act, Rules and Manual, then the entire search was without jurisdiction and the conviction passed on the seizure arising from that search stood vitiated. Another challenge pressed into service by the learned counsel to assail the conviction is based on the ground that there was delay in production of the seized contraband before the court. Search and seizure were carried out on 18.4.1996 but the contraband with the samples collected was produced before the court only on 24.4.1996, according to the counsel. Relying on the decisions in Narayani v. Excise Inspector (2002 (3) KLT 725) and Alex v. State (2003 (1) KLT Short Notes Case No.12), the learned counsel contended that delay in production of the contraband seized, without cogent and convincing explanation as to the cause thereof and also assurance that the contraband and sample collected was in proper custody and remained untampered, till production, is a material circumstance indicative that the sample and the residue seized could not be ruled out, and, therefore, such delay is fatal to the prosecution in sustaining its case against the accused. In this context, the learned counsel invited my CRL.R.P.3245/05 6 attention to the discrepancy in the quantity of the samples collected as stated in Ext.P1 mahazar with that mentioned in Ext.P4 Chemical Analysis report. Whereas Ext.P1 mahazar would show that 100 ml each of illicit arrack and wash from the respective vessels had been collected in two separate bottles and sealed, Ext.P4 analysis report would show that the sample bottles received, each of them, contained a quantity of 180 ml liquid. The discrepancy in the quantity as seen from these two documents viewed in the backdrop of the delay in production of samples and contraband, according to the counsel, is a material circumstance indicating that the samples were tampered. The illegality in the search, the delay in production of the contraband, the discrepancy in the samples as indicated and the absence of any independent witness other than the police officials to prove the case set up against the accused, all these factors, according to the learned counsel, render the prosecution case unworthy of any credence, and as such, the conviction against the accused is liable to be set aside. The learned Public Prosecutor, on the other hand, contended that there is no merit in the CRL.R.P.3245/05 7 submissions canvassed to assail the conviction and both the courts below, after careful scrutiny of the materials, had concurrently found the accused guilty of the offence under Section 55 (b) of the Act and the conviction so entered against him, which is fully supported by legal evidence does not warrant any interference. 5. After perusing the records of the case, I find no merit in the submissions made by the learned counsel to assail the conviction. Needless to point out that corroboration is a rule of evidence and not of law, and whether corroboration is required for acceptance of the evidence of a witness depends on the facts and circumstances of the case. Both the courts have concurrently found that the evidence of the Police officers PW5, the S.I. of police and PW3, the Head Constable of police, who were involved in the seizure of the contraband from the accused was reliable and trustworthy. Their evidence was found fully corroborated by Ext.P1 mahazar prepared over the seizure of the contraband. The attesters to the Ext.P1 mahazer, PWs.1 and 2 had turned hostile to the CRL.R.P.3245/05 8 prosecution, in no way affects the creditworthiness of PWs.5 and 3, the Police officials. Merely because they are Police officials, it cannot be stated that their evidence can be accepted only if there is corroboration from other sources. Their evidence also has to be appreciated applying the same yardstick as in the case of any other witness. Nothing has been brought out in evidence nor any circumstance pointed out to show that PWs.3 and 5 had any animosity towards the accused to foist a false case against him, and, further, to perjure against him before a court of law. According to the learned counsel, the arguments advanced that the evidence of PWs.3 and 5 requires corroboration for acceptance, deserves to be noted only for its rejection. Then the challenge raised that mandatory provisions regarding search had been violated in the seizure of the contraband, which had been pressed into service by the learned counsel to assail the conviction in appeal also, as rightly pointed out by the Sessions Judge, has no merit. No search of any building or vessel was conducted by PWs.3 and 5. When the police party reached the spot, they saw the accused engaged in distillation of arrack in an open CRL.R.P.3245/05 9 shed, is the prosecution case. The proved facts and circumstances unerringly point out that this was a case where the provisions of search had no reliance at all as no search was involved. The heading of Section 31 of the Act clearly spell out that compliance of the mandatory provisions as regards search is warranted when a search is carried out over a building or an enclosed place. Nothing has been brought out in evidence that the shed, which is stated to be used for sheltering goats situate beside the residential building of the accused, was enclosed. When that be the case, there was no necessity to send any search memorandum before apprehending the accused and seizing contraband when he was seen engaged in the distillation of illicit arrack in the open shed by the police party. The decision cited by the learned counsel, K.L.Subhayya v. State of Karnataka (AIR 1979 SC 711) has no application to the facts involved in the present case. The facts involved in the above reported case would disclose that a search over a vehicle in violation of the mandatory provisions was carried out, and it was in that context, the apex court held that such search was one without CRL.R.P.3245/05 10 jurisdiction and it had vitiated the conviction passed against the accused in the case. There is absolutely no similarity or parallel in the facts involved in that case with the present case, where the police party had seen the accused in distilling illicit arrack in an open shed. There was delay in the production of the samples and residue before the court and it had vitiated the trial of the accused was another challenge mooted to assail the conviction. On the date of seizure itself, the contraband seized and samples collected were produced before the Magistrate Court, Mavelikkara, and the next day, it was forwarded to the court in the jurisdiction of which the seizure was made, is borne out by the records, and the learned Sessions Judge after taking note of the above circumstances has repelled the very same attack raised in the appeal concluding there was no delay in the production of the articles and there was no possibility of tampering of the articles involved in the case, which had been produced without delay before the court. The materials produced in the case, as already stated, convincingly proved that there was no delay in the production of materials before the court and the decisions CRL.R.P.3245/05 11 cited by the learned counsel referred to above to advance the plea that the delay in production had caused injury to the accused and vitiated the conviction, have no application to the facts of the case. Further more, it has to be pointed out that even if there was delay, which is not the case in the present one, that by itself is not sufficient to vitiate the conviction unless it is shown that such delay has caused prejudice to the accused. Not only that there was no delay in the case, leave alone any case of prejudice having been caused by the delay in production of the articles before the court. The discrepancy in the quantity of samples collected as stated in Ext.P1 mahazar and Ext.P4 analysis report in the proved facts of the case cannot be given any significance as it is reasonable to hold that the analyst, by inadvertence, had recorded the quantity of liquid contained in the sample bottles as 180 ml instead of 100 ml as shown in Ext.P1 mahazar. Needless to point out the discrepancy pointed out as regards the quantity of the sample with reference to Ext.P1 mahazar and Ext.P4 analysis report is hardly sufficient to assail the conviction of the accused concurrently founded by both the courts below. After going CRL.R.P.3245/05 12 through the entire materials of the case, I find that the conviction of the accused for the offence under Section 55 (b) of the Act is fully supported by legal evidence and it is not liable to be interfered with. 6. The learned Magistrate, while imposing the sentence, it is noticed, has not taken into account the mandatory compliance called for in the matter of punishment as prescribed by the Statute. No special and adequate reason was shown nor adverted to limit the imprisonment till the rising of the court when the Statute mandated, in the absence of such reasons, minimum incarceration prescribed to be inflicted on the offender. Sessions Judge in appeal had taken note of the same, but as no appeal was preferred by the State against the sentence no modification was made. Even without an appeal on sentence, where it is noticed that the minimum statutory punishment prescribed has not been inflicted, the appellate court has the jurisdiction to alter the sentence and inflict such minimum punishment as mandated by law. However, having regard to the time lag, after the CRL.R.P.3245/05 13 commencement of the prosecution against the accused, I find that variation of the sentence to make it in consonance with the statutory minimum need not be resorted to in revision. Sentence imposed against the accused, needless to say, does not require any interference. Revision is dismissed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO.3245 OF 2005 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 6th April, 2009