IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 1ST FEBRUARY 2008 / 12TH MAGHA 1929 CRL.A.No. 2080 of 2007 ------------------------------------- SC.433/2007 of ADDL.ASSISTANT SESSIONS COURT, THALASSERY CP.97/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA .................... APPELLANT: SHAJI @ LOLAN, C.NO.5314, CENTRAL PRISON, KANNUR. BY ADV. BANI P[STATE BRIEF] RESPONDENT: STATE OF KERALA BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 2080 of 2007 --------------------------- JUDGMENT Convict No.5314 Shaji @ Lolan has preferred this appeal from Central Prison, Kannur assailing the conviction and sentence passed against him by the Additional Assistant Sessions Judge, Thalassery of offence under Section 8(1) of the Abkari Act, punishable under Section 8(2) thereof vide judgment dated 17.9.2007 in S.C.No.433/07. On conviction, he is sentenced to undergo simple imprisonment for four months and to pay a fine of Rupees one lakh and in default to undergo simple imprisonment for a term of six months with right of set off. 2. The prosecution case is that at about 5.45 p.m. on 14.2.2002, the appellant was found in possession of 2½ litres of illicit arrack for sale at Kandappana in Kottiyoor Amsom and thus he has committed an offence punishable under Section 8(2) of the Abkari Act. CRA 2080/07 2 3. PW5, the Sub Inspector of Police, Kelakam, conducted investigation in the case and laid final report before the Judicial First Class Magistrate's Court, Kuthuparamba and that was taken on file as C.P.No.97/02. The learned Magistrate, after complying with all legal formalities, committed the case to the Sessions Division, Thalassery, where, it was taken on file as S.C.No.578/02 and was made over to the Additional Assistant Sessions Court, Thalassery for trial and disposal. The appellant was absconding and therefore, the case was transferred to the register of long pending cases and on apprehension of the appellant, the case against him was re-filed assigning the present number S.C. 433/07. 4. On production of the appellant in the court below, he engaged is own Lawyer to defend the case on his behalf. Thereafter, preliminary arguments were heard, charge was framed against the appellant for offence under Section 8(1) of the Abkari Act, punishable under Section 8(2) thereof, was read CRA 2080/07 3 over and explained to him and he was questioned. Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted by the court below. 5. On the side of the prosecution, PWs 1 to 5 were examined and Exhibits P1 to P8 were got marked and MO1 was got identified. On the prosecution closing their evidence, the appellant was questioned by the court below under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. However, he did not adduce any evidence in defence. The court below considered the case in the light of the evidence adduced as aforesaid; found the appellant guilty of the offence under Section 8(1) of the Abkari act punishable under Section 8(2) thereof; convicted him thereunder and sentenced him as already stated. Hence this appeal by the aggrieved appellant. CRA 2080/07 4 6. As this appeal is preferred from Jail and the appellant had not engaged a Lawyer of his choice, Advocate Sri.Bani.P. was appointed on State Brief to argue the appeal on behalf of the appellant. Heard arguments of counsel on State Brief and the learned Public Prosecutor. 7. The contentions that are advanced before me by the learned counsel on State Brief on behalf of the appellant are that there is no corroboration of testimony of PW4, the Detecting Officer and the court below therefore, should not have entered into a conviction of the appellant on the basis of the sole testimony of the Detecting Officer; that the material objects (MO1) were forwarded to court only on 19.2.2002, the delay for which is not explained and therefore, the chances of the material object having been tampered with cannot be excluded and that therefore, the appellant should have been found not guilty and acquitted, granting him, at least, the benefit of doubt. It is further contended that information regarding arrest of the CRA 2080/07 5 appellant/accused had not been communicated to his relatives and that therefore, for non compliance of the directions of the Honourable Supreme Court in the matter of arrest, the appellant deserves an acquittal. 8. PW4 is the Detecting Officer in the case and he was the Sub Inspector of Police, Kelakam Police Station. He has given evidence that while he was conducting patrolling in the evening on 14.2.2002, he got reliable information that at the place Kandappana in Kottiyoor Amsom, on the pathway, in front of the house of one Freddy, a person is vending arrack; that taking also P.C.280 with him from Kottiyoor, he reached the place Kandappana and then he saw at the Junction 75 metres away from the house of Freddy a person standing with a can in his hand and on seeing them he dropped the can and attempted to take to heels towards west. But, he was intercepted by him and the contents in the can was examined and it was understood that the content was arrack by smell and CRA 2080/07 6 taste and consequently he effected arrest of the appellant at 7.50 p.m., preparing Exhibit P3 arrest memo in that behalf; that thereafter sample was taken from the said can in a 375 ml. bottle and sealing it and affixing label thereon, signed by himself and witnesses as also the appellant and the sample as also the balance arrack in the can were taken into bandavast, preparing Exhibit P2 seizure mahazar in that behalf and that on reaching back at the Police Station, he registered the crime, drawing up Exhibit P5 FIR in that behalf and produced the material objects before court, describing them in Exhibit P6 property list and that he also submitted Exhibit P7 forwarding note in duplicate to have the sample taken by him to be forwarded for chemical examination. He has also identified ExhibitP8 as the chemical analysis report obtained forwarding the sample for chemical analysis. In cross-examination of PW4, nothing has been brought out to discredit his testimony. It has also been not asked to PW4 that had he not CRA 2080/07 7 intimated of the arrest to the relatives of the appellant, except that it is not evidenced by Exhibit P2. In fact, Exhibit P2 is the seizure mahazar and exhibit P3 is the arrest memo signed also by the appellant and witnesses. 9. PW5 is the Investigating Officer in the case. He has deposed that he was the Sub Inspector of Police at Maloor and he was conducting investigation in the case on the directions of the Circle Inspector of Police, Peravoor. PW5 is also not asked as to whether intimation of arrest had been given to the relatives of the appellant. It is true that as per Exhibit P6 property list, the material objects were produced before court on 18.3.2002. On production on 18.3.2002, the learned Magistrate was authorising the Sub Inspector of Police to keep the material objects in safe custody at the police station until further orders. However, it is seen that with Exhibit P7 forwarding note, the sample taken from MO1 can was being produced in court on 20th of March 2002. When the CRA 2080/07 8 sample was forwarded to Chemical Analyst, it was being forwarded in the very same sealed bottle and Exhibit P8 chemical analysis report shows that the seals on the bottle were intact and were found tallying with the sample seal provided. The report of chemical analysis shows that the sample contained ethyl alcohol 29.88% by volume. No question at all is put either to PW4 or to PW5 suggesting that there was any tampering with the material objects or the sample or that any prejudice has been caused by the belated production of the material objects in court by four days. 10. It is true that PWs 1 and 2, who are attestors to Exhibit P1 scene mahazar, have not supported the seizure effected by PW4. But, all the same, they have admitted their signatures in the seizure mahazar. Merely because PWs 1 and 2 have turned hostile and are not supporting the detection and seizure, it cannot be said that the case has to be thrown over board and the appellant acquitted. CRA 2080/07 9 11. PW3 is an attestor to Exhibit P1 scene mahazar. When circumstances sufficient to discredit the testimony of an official witness have not been brought out in cross-examination, it is futile to contend that merely because he is a police officer and there is no corroboration of his testimony by independent witnesses, the case sworn to by him shall not be believed. However, in the instant case, the fact remains that the material objects and the appellant were brought to the police station and crime was registered drawing up Exhibit P5 FIR on the very same day; that PW5 has taken over investigation the very next day and has prepared the scene mahazar on 15.2.2002 itself. These aspects corroborate the testimony and genuineness of the case deposed to by PW4 the Detecting Officer. There is no reason at all to disbelieve the case for the reason that there is no corroboration by independent witnesses of the testimony of PW4, the Detecting Officer or that for reason of delay in producing the material objects CRA 2080/07 10 by four days, the genuineness of the prosecution case has to be disbelieved or that tampering with the material objects will have to be presumed, when there is no challenge on those lines. 12. The contention that the appellant is entitled to an acquittal for lack of proof of arrest having been intimated to his close relatives is far fetched. There is no merit in the contention so advanced. Nothing has been asked also to PW4 regarding non information furnished to the relatives of the appellant. Thus, I see no reason to come to a different conclusion than that arrived at by the court below to the effect that the detection and seizure stand established in the instant case and that the appellant deserves to be convicted for offence under Section 8(1) of the Abkari Act punishable under Section 8(2) thereof. The sentence awarded by the court below is also very moderate and reasonable and no interference is required to be made in the sentence awarded as well. CRA 2080/07 11 In the result, confirming the conviction and sentence passed by the court below against the appellant, I dismiss this appeal. Communicate a copy of this judgment to the appellant through the Superintendent of Central Prison, Kannur. 1st February, 2008 (K.P.Balachandran, Judge) tkv CRA 2080/07 12 K.P.Balachandran, J. --------------------- Crl.A.No.2080 of 2007 --------------------- JUDGMENT 1st February, 2008