IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 31ST AUGUST 2011 / 9TH BHADRA 1933 CRL.A.No. 2055 of 2007() ------------------------ SC.171/2004 of ADDL. SESSIONS COURT (ADHOC), KALPETTA .................... APPELLANT(S): ACCUSED --------------------- PAPPACHAN @ ULAHANNAN, C.NO.4777 CENTRAL JAIL, KANNUR BY ADV. PAPPACHAN (APPELLANT) SRI.INNOCENT FRANCIS PAPALI- STATE BRIEF RESPONDENT(S): COMPLAINANT -------------------------- STATE: EXCISE INSPECTOR, EXCISE RANGE MANANTHAVADI, CR.NO.8/02 PUBLIC PROSECUTOR SRI.VENUGOPAL.M.R THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31/08/2011, THE COURT ON 31/08/2011 DELIVERED THE FOLLOWING: V.K.MOHANAN,J ------------------------------ Crl. A.No.2055 of 2007 ---------------------------------------- Dated this the 31st day of August, 2011 JUDGMENT The sole accused in Sessions Case No.171/2004 of the court of Addl. Sessions Judge (Adhoc)-I, Kalpetta is the appellant, as he is aggrieved by the judgment dated 26.4.2007 of the above court by which he is convicted and sentenced u/s.55(a) of the Abkari Act. 2. The prosecution case is that at about 3.00 p.m on 30.4.2002, the accused was found transiting 2 liters of arrack at a place on the Paleri-Panjode public road in front of a rice mill, at Njarakode Bhagam in Mananthavady Taluk and thereby, he had committed the offence punishable u/s.55(a) of the Abkari Act. With the above allegation Crime No.8/2002 was registered in the Excise Range, Mananthavady and after investigation, final report was filed in the Judicial First Class Magistrate Court-I, Mananthavady, thereupon cognizance was taken for the said offence and instituted C.P.No.61/2003 and the learned Magistrate by his order dated 28.8.2003 in the above proceedings committed the case to the Sessions Court Crl. A.No.2055 of 2007 2 wherein the same was received as SC No.171/2004, which subsequently, made over to the trial court for disposal. 3. Thus, when the accused appeared before the trial court after hearing him and the prosecution, a formal charge was framed for the offence punishable u/s.55(a) of the Abkari Act and when the same read over and explained to the accused, he denied the charge and pleaded not guilty which resulted in the further trial during which the prosecution has adduced its evidence consists of oral evidence of PWs.1 to 6 and the documentary evidence in Exts.P1 to P8. Though no defence witness was examined. Ext.D1 was got marked by the defence. MOl material object is also identified and marked. Finally, the learned judge of the trial court has held that the prosecution has succeeded in proving the case against the accused beyond shadow of doubt and thus, he is found guilty and accordingly, convicted him for the offence u/s.55(a) of the Abkari Act. On such conviction, the learned Judge sentenced the accused to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-. The default sentence is fixed as rigorous imprisonment for 3 months. Set off was allowed. It is the above Crl. A.No.2055 of 2007 3 finding, conviction and sentence are challenged by the appellant in this appeal. 4. While the appellant was undergoing imprisonment in pursuance of the above judgment, he preferred the above appeal from jail and on receiving the said jail appeal, as ordered by this Court, the registry has appointed Advocate Sri.Innocent Francis Papali so as to prosecute the appeal for and on behalf of the appellant. 5. I have heard Sri. Innocent Francis Papali, learned counsel appearing for the appellant and Sri. Venugopal, the learned Public Prosecutor also. 6. The crux of the prosecution allegation is that, the accused was found in possession of 2 liters of illicit arrack at about 3.00 p.m on 30.4.2002 and thereby committed the offence punishable u/s.55(a) of the Abkari Act. In order to substantiate the above allegation as I indicated earlier, the prosecution has produced oral as well as documentary evidence. Among the prosecution witnesses, PW1 is the then Excise Inspector, attached to Mananthavady Excise Range, who detected the offence. When PW1 was examined, he had deposed that himself Crl. A.No.2055 of 2007 4 and PW2 and other party were on patrol duty found the accused entering into the Palery Panjode public road and on suspicion, they approached the accused and intercepted him and thus, he was found in possession of a can have a capacity of 2 ½ liters and on further verification by tasting and smelling the contents of the can was identified as arrack. Thereafter, the same was seized after drawing samples as per the seizure mahazar. Thus, while PW1 was examined, the prosecution has produced and marked Ext.P1 arrest memo, P2 seizure mahazar, P3 crime and occurrence report, P4 property list, P5 copy of forwarding note and P6 chemical analysis report. Beside the above, the defence has got marked Ext.D1, portion of CD statement of PW1. PW2 is another prosecution witness, who accompanied PW1 at the time of the seizure of the contraband article. He is also the signatory to Ext.P2 seizure mahazar. When PW2 was examined he had deposed in tune with the deposition of PW1 supporting the prosecution case. PW3 and 4 are two independent witnesses cited and examined by the prosecution to prove the seizure and arrest of the accused. They are also the attestors to Ext.P2 seizure mahazar. But PW3 turned hostile to the prosecution. But Crl. A.No.2055 of 2007 5 PW4 deposed before the court fully in terms of the prosecution allegation. PW5 is the officer, who subsequently undertook the investigation and finally, laid the charge. Ext.P7 scene mahazar was marked through him. PW6 is the Junior Supdt. attached to Judicial First Class Magistrate-II, Mananthavady through whom, Ext.P8 despatch register was marked. It is the above evidence and materials relied by the learned judge of the Sessions Court in support of his finding and convicting the appellant/accused. 7. Sri. Innocent Francis Papali, the learned counsel for the appellant vehemently submitted that the prosecution case cannot be believed and accepted, because of the contradictions that contained in the deposition of PW1 and 2. According to the learned counsel, the trial court miserably failed to appreciate the contention advanced by the appellant since the contradictions pointed out by the defence are sufficient to disbelieve the case of the prosecution. It is also the submission of the learned counsel that there was an inordinate delay in completing the investigation and thus, the accused/appellant is prejudice because of the delay. It is also the submission of the learned counsel that the contraband articles were reached in the court Crl. A.No.2055 of 2007 6 with one day delay and when the accused was produced before the court, the material objects were not produced and the said delay is not properly explained by the prosecution. On the basis of the above grounds, learned counsel submitted that findings and the conviction entered into by the court below are liable to be interfered with and consequently, the accused is entitled to get an acquittal. 8. On the other hand, learned Public Prosecutor submitted that the contradictions pointed out by the learned counsel for the appellant has no much relevance in the light of the facts and circumstances involved in this case. According to the learned Public Prosecutor, though there is one day delay, producing the materials before the court below, the accused is no way prejudice by such delay especially when there is no allegation or complaints to the effect that the samples were tampered etc. Thus, according to the learned Public Prosecutor, no interference is warranted with respect to the findings and the conviction and sentence imposed by the court below against the appellant/accused. 9. I have carefully considered the arguments advanced by Crl. A.No.2055 of 2007 7 the counsel for the appellant as well as the learned Public Prosecutor and I have perused the judgment of the trial court and also carefully scrutinized the evidence on record. 10. In the light of the rival contentions advanced by the counsel for the appellant as well as the learned Public Prosecutor and the materials and evidence referred to by the learned Sessions Judge and in the light of the findings of the court below, the question to be considered is whether the findings of the court below and the conviction and sentence imposed against the appellant are legally and factually sustainable and any interference is warranted. As I indicated earlier, when PW1 was examined he had deposed strictly in accordance with the prosecution case and he had gave a detailed account as to the proceedings and steps adopted by him for the arrest of the accused as well as the seizure of the contraband article. The above evidence of PW1 is corroborated by another official witness namely, PW2, who accompanied PW1 at the time of the detection of the offence. Though, PW1 and 2 were subjected to cross examination nothing brought on record discredit their version. The learned counsel for the appellant submitted with respect to Crl. A.No.2055 of 2007 8 the distance, at which PW1 had seen the accused, was stated for the first time, in the court and whereas PW5 during his cross examination has stated that PW1, never deposed before PW5 regarding the distance. According to me, the above contradiction has no much relevance in the light of the facts and circumstances involved in this case. The evidence of PW1 and 2 are in tact with respect to the arrest of the accused while he was possession of the contraband article. Those evidence of PW1 and PW2 with refers to the above facts are fully supported by the contemporary documents, Ext.P2 as well as other documents which, I referred to. It is also relevant to note that though PW3 turned hostile who is an independent witness cited by the prosecution, another independent witness PW4, fully supported the prosecution case with respect to the seizure of contraband article from the possession of the accused and arrest of the accused from the spot itself. 11. Another ground urged by the learned counsel is with repeat to the delay that occurred connected with the production of materials before the court below. It is pointed out by the learned counsel that when PW1 was examined, he had admitted Crl. A.No.2055 of 2007 9 that he did not produce the material objects in the court at the time when the accused was produced. But according to the learned counsel when PW5 was examined, he has no such a case and PW5 stated that the material objects were produced in the court when the accused was produced. Ext.D1 is the contradiction that contained in the 161 statement of PW1. The alleged offence was taken place on 30.4.2002 at about 3.00 p.m. The place of occurrence, it appears that an interior part of the village in Wayanad District and on that day, PW1 could produce only the accused, but he did not produce the material object before the court on that day itself, but the same was produced on the next day. The defence has no case that even though there is one day delay in producing the material object, the materials were tampered with or any attempt was made to create artificial evidence against the accused. Therefore, Ext.D1 contradiction has no much relevance in the present case. 12. Regarding the delay, that occurred in the investigation, when PW1 was cross examination, he had deposed that the delay was occurred because of the investigation undertaken by him connected with the seizures in another cases. It is also the Crl. A.No.2055 of 2007 10 submission of the learned counsel that though the samples were obtained from the court on 17.6.2002, but the same was reached in the chemical analysis lab on 18.6.2002 only and the said delay was not explained. The learned sessions judge himself has stated that the chemical analysis lab situating at Calicut and the samples has to be taken from Mananthavady to Calicut and at least 3 hours journey is necessary to reach Calicut from Mananthavady. The trial court has also found that though the delay is not explained properly, it is stated that the seals on the bottle were in tact and found tallied with the sample seal provided by the court. Thus according to the learned sessions judge, the non explanation of the delay is not fatal to the prosecution, I also endorse the above finding. From the facts and circumstances involved in this case, it cannot be said that there was an inordinate delay for reaching the samples in the lab after obtaining the same from the court. There is also no allegation that any attempt was made to tamper with the evidence. On the other hand the factual finding of the learned sessions judge is to the effect that the sample bottles were in tact. Therefore, the ground taken by the counsel for the Crl. A.No.2055 of 2007 11 appellant on the basis of the delay in reaching the samples in the lab, has no relevance in the light of the facts and circumstances involved in this case. 13. From the discussions and the materials and evidence referred to above, I am of the view that the learned sessions judge is fully justified in his finding and convicting the accused u/s.55(a) of the Abkari Act and accordingly, the conviction recorded by the trial court is confirmed. 14. Though the counsel for the appellant submitted that the sentence imposed is exorbitant and unreasonable, I am not inclined to accept the same because the sentence imposed is only one year rigorous imprisonment and imposed only the minimum fine of Rs.1,00,000/- with a reasonable term as default sentence. In the result, there is no merit in the appeal and accordingly, the same is dismissed confirming the conviction and sentence imposed against the appellant. V.K.MOHANAN, JUDGE. pm