IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN THURSDAY, THE 15TH DAY OF DECEMBER 2011/ 24TH AGRAHAYANA 1933 CRA. No. 2129 of 2003 ( ) SC.585/2000 of ADDL.SESSIONS JUDGE, FAST TRACK (ADHOC -I), ALAPPUZHA APPELLANT/ ACCUSED SOBHANA, S/O.MADHAVAN, PALACHUVATTIL VEEDU, WARD NO.3, MARARIKULAM VADAKKU PANCHAYATH, ALAPPUZHA DISTRICT. BY ADV.SRI.S.SHANAVAS KHAN RESPONDENT/ COMPLAINANT STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY SMT.S.HYMA, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 15-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RKM P.S. GOPINATHAN, J. ---------------------------------------------------------- Crl.A.No. 2129 of 2003 ------------------------------------------------ Dated this the 15th day of December, 2011 JUDGMENT The learned Additional Sessions Judge, (Ad hoc- I), Alapppuzha in Session's Case.No.585/2000 convicted the appellant for offence under Section 55(a)of the Abkari Act and sentenced to rigorous imprisonment for 2 years and a fine of Rs.1,00,000/- with a default sentence of rigorous imprisonment for 6 months. Assailing the above conviction and sentence, this appeal is preferred. 2. The prosecution case is that on 29/11/1999, PW8, the Sub Inspector of Police attached to the Mararikulam Police Station got information that the accused had stored arrack at his residence. So he prepared Ext.P2 Search Memo. After forwarding the same to the local Magistrate, he proceeded to the house of the appellant along with PW2, a Head Constable attached to Aroor Police Station and others. On searching the house with Door No.3/87-A of Mararikulam Panchayat, which was assessed in the name of the appellant, PW8 detected out MO1 plastic can with 15 litres of spirit. The appellant was Crl.A.No. 2129 of 2003 2 arrested and MO1 was seized for which Ext.P3 seizure mahazar wherein PWs 3 and 4 are attestors was prepared. From the liquid contained in MO1, two samples each containing 250 milli litres were taken for the purpose of analysis. The sample bottles and MO1 with remaining quantity of spirit were sealed then and there. Returning to the Police Station with the appellant, a case as Crime No.266/1999 was registered alleging offences under Sections 55(a) and (i) of the Abkari Act. On interrogation, the appellant confessed that he had buried four plastic cans each containing 35 litres of spirit in the compound of the S.N.College, Cherthala,which is in front of his brother's house. PW8, after recording the confession of the appellant proceeded to the College compound as directed by the appellant. From the spot pointed out by the appellant, 4 plastic cans which were as marked as Mos 2 to 5 , each containing 35 litres of spirit were dug out and and seized for which, Ext.P5 seizure mahazar was prepared. The appellant and the material objects were produced before the local Magistrate. PW8 proceeded with the investigation. After completing the investigation, charge for offences under Section 55 (a) and (i) of the Abkari Act was submitted before Crl.A.No. 2129 of 2003 3 the Judicial Magistrate of the First Class, Alappuzha. Finding that the case is exclusively triable by a Court of Session, the case was committed to the Court of Session, Alappuzha. From there, the case was made over to the Additional Sessions Judge. 3. The appellant, who was released on bail on 14/12/1999, entered appearance before the Additional Sessions Judge and pleaded not guilty when the charge was framed, read over and explained. Therefore, he was sent for trial. On the side of the prosecution, PWs 1 to 8 were examined. Exts.P1 to P6 and Mos 1 to 5 were marked. After closing evidence for the prosecution, the appellant was questioned under Section 313 (1) (b) of the Code of the Criminal Procedure. The appellant took a defence of total denial. Though, he obtained three adjournments for adducing evidence, no defence evidence was let in. On appraisal of the evidence, the learned Additional Sessions Judge arrived at a finding that the recovery of Mos. 2 to 5 each with 35 litres of spirit cannot be accepted as there is no statement recorded by the Investigating Officer leading to the recovery of the same. Therefore, that much evidence was rejected. Seizure of MO1 was believed and further found that Crl.A.No. 2129 of 2003 4 the prosecution had succeeded to establish offence under Section 55(a) of the Abkari Act, consequent to which the impugned conviction and sentence. 4. I have heard Adv.Smt.S.Indhu, the leaned counsel for the appellant and Smt.S.Hyma, learned Govt.Pleader. Perused the judgment and evidence on record. 5. PWs 5 to 7 are relating to the seizure of Mos 2 to 5. Since that much version of prosecution case was rejected by the Trial Court and no appeal is preferred by the prosecution, I find that it is needless to go into the prosecution case regarding Mos 2 to 5. 6. PW8, the Sub Inspector of Police had given evidence in support of the prosecution case regarding seizure of MO1 after search of the house of the appellant. He would depose that he got reliable information regarding the possession of the spirit by the appellant. So he prepared Ext.P2 Search Memo, proceeded to the house of the appellant and conducted search. Ext.P3 is the seizure mahazar for the recovery of MO1 containing 15 litres of spirit. From the liquid contained in MO1, 250 milli litres was taken in a sample bottle and it was sealed. It was further deposed that the house which he Crl.A.No. 2129 of 2003 5 searched was with Door No.3/387-A. Returning to the Police station, a case as Crime No.266/1999 was registered for which Ext.P4 First Information Report was prepared. The appellant, who was present at the spot, was arrested and produced before the local Magistrate. 7. PW 2, a Head Constable attached to Aroor Police station would depose that as instructed by the Deputy Superintendent of Police, Cherthala, he had gone with PW8 for the search of the house of the appellant. He would would also depose about the seizure of MO1 and arrest of the appellant. PWs 3 and 4, though denied of witnessing the seizure of MO1, admitted their signatures in Ext.P3. PW1, the Secretary of the Mararikulam North Panchayat would depose that Ext.P1 Certificate was issued by him after perusing the assessment register for the year 1997-98 and 1999-2000 and that the house bearing Door No.3/87-A is assessed in the name of the appellant. Ext.P1 Certificate also corroborates PW1. Exts.P1 to P3 would show that the house where the MO1 was seized is with Door No.3/87-A. Exts.P4 and P5 also would describe the very same house. But in the box, PW8 would depose that the house which he searched is with the Door No.3/387-A. Going Crl.A.No. 2129 of 2003 6 by evidence on record and the judgment impugned, I find that it is a slip of tongue made by PW8 and it is not at all sufficient to reject the prosecution case. The appellant has no case that he was not arrested from the house from where the MO1 was seized or that the said house was belonging to some one else or that the custodian of MO1 was some other member of his house. Therefore, I find that the conclusion of the learned Additional Sessions Judge that MO1 was seized from the house of the appellant is based upon cogent evidence and requires no interference. Ext.P6 would show that the samples contained 89.49% and 94.34% of Ethyl Alcohol by volume. The learned counsel appearing for the appellant argued that there is four days delay in producing the Material Objects before the Magistrate. It was produced only on 4/12/1999. Therefore, there is a chance for tampering and no reliance can be given to Ext.P6. It is crucial to note that PW8, the Sub Inspector of Police submitted that he produced the Material Objects before the Court on 4/12/1999 and till then, it was in his safe custody for the purpose of investigation. There is no tampering. PW8 also submitted that during the period between seizure and production, Material Objects and samples were not in any way Crl.A.No. 2129 of 2003 7 tampered or that PW8 had cooked up a false case. It is also pertinent to note that the appellant has no case that PW8 was any way ill- motivated so as to cook up a case of this nature against him. Carefully going through the evidence of PW2 and 8 with Ext.P3, I find no reason to reject the prosecution case. Therefore, I find that the conviction under challenge is based upon cogent evidence and requires no interference. 8. Having due regard to the fact that the appellant was dealing illicit spirit, I find that the sentence imposed by the Trial Court is neither hash nor exorbitant. Sentence also requires no interference. In the result, the appeal fails and is dismissed. The Trial Court shall see the execution of sentence and report compliance. P.S.GOPINATHAN, JUDGE su