IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 CRL.A.No. 1532 of 2003(A) ------------------------------------- [S.C.NO.52/2003 OF ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-II, KOTTAYAM] .................... APPELLANT/ACCUSED: ---------------------------------- BIJU @ SASI, S/O. SREEDHARAN, KURICHIYIL VEEDU, POTTUKULAM BHAGAM, VELLAVOOR, CHANGANASSERY, KOTTAYAM. BY ADV. SRI.M.K.CHANDRA MOHANDAS. RESPONDENTS: ------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. ALEX M.THOMRA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. N.K.BALAKRISHNAN, J. -------------------------------- Crl.A.No.1532 of 2003 --------------------------------- Dated this the 12th day of August 2011 J U D G M E N T The appellant was convicted by the Additional Sessions Judge, Fast Track Court (Adhoc)-II, Kottayam for offences punishable under Secs.55(b) and 55(g) of the Abkari Act and he was convicted and sentenced to undergo R.I. for three years each and to pay a fine of Rs.1 lakh each under Secs.55(b) and 55(g) and in default of payment of fine to undergo S.I. for 60 days each. 2. The case of the prosecution is that the accused was found manufacturing arrack from wash, using still and utensils. It was also alleged that he was in possession of 8 litres of arrack for sale in his house bearing door No.IV/399 of Vellavoor Panchayat in Vellavoor village when the Excise officials searched his house at 3 PM on 27.8.2001. Since the accused was found manufacturing arrack in the place Crl.A.No.1532 of 2003 -: 2 :- mentioned above he was arrested. 3. Exts.P1 to P4 were marked on the side of the prosecution. Ext.P1 is the search list prepared for that purpose. Ext.P2 is the statement of the accused. Ext.P3 is the First Information Report registered based on the seizure of the properties as per Ext.P1. Ext.P4 is the certificate issued by the Chemical Examiner. PWs.1 to 6 were examined and Mos.1 to 13 series were also marked on the side of the prosecution. The accused contended that it is not from his house these properties were seized and that the articles shown in the search list are not that of his. But the prosecution contended that it is a case where the accused was arrested from the very spot while he was manufacturing illicit liquor. 4. PWs.1, 2 and 4, the independent witnesses did not support the prosecution. The prosecution mainly relied upon the evidence given by PW3 and PW5, the police officials. The investigation was conducted by PW6, the Sub Crl.A.No.1532 of 2003 -: 3 :- Inspector of Police. 5. The evidence given by PW3 and PW5 would show that they were on patrol duty on 27.8.2001. While so as they received information regarding illicit distillation, after preparing and sending the search memo they reached the house of the accused mentioned earlier. They found the accused manufacturing arrack from wash using still and utensils (MOs.1 to 4) and the rubber tube. It is also in evidence that a jar of 10 litres containing about 8 litres of arrack was found in the room where the distillation was conducted. It was deposed by them that an aluminium pot was seen placed on the fire-hearth and also one earthen pot put on the aluminium pot mentioned above. Further they also stated that a flat bottomed aluminium vessel containing hot water was seen kept on the aforesaid earthen pot. A tube connected to the middle portion of the earthen pot extending to a bottle of 750ml was also seen fixed. The condensed liquid was falling drop by drop into said bottle Crl.A.No.1532 of 2003 -: 4 :- through the tube. This was the manufacturing process. This was what was actually witnessed by PW3 and PW5 at the time and place as stated above. There is also evidence to show that the police party smelt and tasted the said liquid and confirmed the said liquid as arrack. A jar containing 8 litres of arrack was also found. It was further testified by PW3 and PW5 that 200ml each of arrack was taken in three bottles of 375ml as sample. It was taken from the jar containing about 8 litres of arrack as mentioned earlier. Further they also took samples of wash measuring 350ml each in 3 bottles of 375ml each and all those samples were closed, sealed and labelled then and there. It was also stated that 250ml of liquid which was seen in the bottle to which the liquid had fallen through the rubber tube during the distillation process was also taken and that was also closed, sealed and labelled as mentioned earlier. 6. The evidence given by PW3 and PW5 with regard Crl.A.No.1532 of 2003 -: 5 :- to the manufacture/distillation of illicit liquor as witnessed by them and deposed in court was relied upon by the prosecution to prove the case. Three sets of samples taken by them at the spot were separately noted as SI, SII and SIII, while the bottle containing arrack collected through the distillation process was separately marked as SIV. The sample bottle containing wash were marked as WI, WII and WIII. The jar containing the liquor was marked as MO5. Two empty jars which were found there were also seized as per Ext.P1 search list. Those jars were marked as MO6 and MO7. Another plastic bag was marked as MO8. The sample bottles mentioned earlier were marked as MO9 to MO13. The prosecution would contend that since in Ext.P1-search list all these details were specifically mentioned and as these properties were seized at the time and place noted therein, being a contemporaneous document, it (Ext.P1) would corroborate the evidence given by PW3 and PW5. PW3 has stated that all the contraband Crl.A.No.1532 of 2003 -: 6 :- articles were produced in court on the next day i.e. On 28.08.2001 itself. 7. Ext.P4, the certificate of analysis, shows that one sealed packet having 3 bottles marked as SIV, SI and WI containing 250ml, 200ml and 250ml respectively of clear and colourless liquid alleged to be arrack and koda (wash) involved in crime No.137/01 of Manimala police station were received in that laboratory for chemical analysis. It was certified that the bottle marked as SIV had the smell of spirit, the liquor contained in sample bottle SI had the smell of Ethyl Alcohol. The liquid contained in the bottle marked as WI had the smell of wash. Ethyl Alcohol was detected in all the samples. 8. Ext.P4 is the chemical examination report which shows that the sample marked as item No.SIV contained 63.87% by volume of ethyl alcohol and sample marked as item No.S I contained 28.9% by volume of ethyl alcohol and wash marked as item No.W I contained 7.21% by volume of Crl.A.No.1532 of 2003 -: 7 :- ethyl alcohol. As said earlier PWs.3 and 5 could see that the accused was engaged in manufacturing/distillation of illicit arrack. That oral evidence is strengthened by the items seized from the scene, which were found to contain ethyl alcohol as certified in Ext.P4. 9. It was testified by PW3 that before proceeding to the house for conducting search, a search memorandum was prepared and it was sent to the court and it was thereafter he proceeded to the house along with PW5 and his police men. It is contended by the defence that the copy of the search memorandum was not seen produced nor did the prosecution venture to get the original search memo from the Magistrate's Court and to incorporate the same among the records. So it is contended that the search was illegal. But prosecution would contend that the evidence given by PW3 that the search memorandum was prepared and sent to the court was not seriously assailed by the defence. Even if it is assumed that there was illegality in Crl.A.No.1532 of 2003 -: 8 :- the search conducted, it will not render the evidence collected invalid as was held by the Constitution Bench in Pooranmal'case (AIR 1974 SC 348) which was followed by the apex court in the subsequent decision also. One such decision is reported in Khet Singh V. Union of India, 2002 SCC (Cri) 806 where it was held: “Law on the point is very clear that even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not become inadmissible and the court would consider all the circumstances and find out whether any serious prejudice has been caused to the accused. If the search and seizure was in complete defiance of the law and procedure and there was any possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure, then, it could be said that the evidence is not liable to be admissible in evidence.” 10. It is a case where there was prompt preparation of the search list and prompt production of the material objects before the court on the next day itself. The accused was also produced before the Magistrate on 28/08/2001 Crl.A.No.1532 of 2003 -: 9 :- itself. Nothing could be pointed out by the defence to show that there was any sort of manipulation or concoction of any evidence. The further fact that in Ext.P1 search list, it was mentioned that, the search was conducted after preparing and sending the search memo to the court would lend assurance to the case of the prosecution that the search was conducted in due compliance of the procedure prescribed. No question was put to show that any prejudice was caused to the accused. 11. The defence very much relied upon Ext.D1 ownership certificate issued by the Secretary, Vellavoor Grama Panchayat which shows that the accused is the owner of the building No.VI/244 whereas the door number of the building where from the case was detected was No.IV/399. The learned counsel for the accused has relied upon the decision in Sambasivan v. State of Kerala, A.S.I. of Police [2007 (1) KHC 462] to support his argument that the prosecution has to prove that the place Crl.A.No.1532 of 2003 -: 10 :- from where contraband articles were seized actually belonged to the accused and the accused was the person responsible for keeping the contraband articles. Facts of that case are entirely different. It is not a case where the prosecution wanted to establish its case based on the ownership of the building for the seizure of the articles from that building. But it is a case where the accused was caught in flagrante delicto. He was found engaged in the distillation of illicit arrack and was thus caught red handed. Therefore, absence of proof of ownership of the building is quite immaterial. The fact that the accused is the owner of another building (building bearing No.VI/244) will not come his rescue to contend that he was not apprehended by PW3 and PW5 while he was engaged in illicit distillation of arrack. But the question is whether there is convincing evidence to hold that the accused was engaged in distillation of illicit arrack and was in possession of stills, utensils and other apparatus for manufacturing liquor. The Crl.A.No.1532 of 2003 -: 11 :- fact that the independent witnesses chose to betray the prosecution cannot over turn the prosecution case since the propensity for independent witnesses to turn hostile in such cases; especially in abkari cases has become the order of the day. The fact that witnesses 1, 2 and 4 did sign the search list prepared contemporaneously is a strong circumstance to hold that they were in fact present at the time and place of detection of the crime. They shifted their loyalty to the accused, for obvious reasons. But that is no reason to discard the evidence given by PW3and PW5 and the contemporaneous record Ext.P1 and the materials collected during the search conducted by PW3. 12. The learned counsel for the appellant would strenuously argue that there is material contradiction in the evidence given by PW3 and PW5 with regard to the detection of the crime. While, one witness would say that the manufacturing process was being conducted in the shed the other witness would say that it was being done in a Crl.A.No.1532 of 2003 -: 12 :- house and so, the contradictory version given by these two witnesses should not have persuaded the trial judge to accept the same to find the accused guilty. Ext.P1 is the search list contemporaneously prepared by PW3. It was attested by PW1 and PW2. It was signed by accused as against column No.11 which requires signature of the owner or occupier of the house to be made. In Ext.P1, the house/shed where the manufacturing process which was being done was described as shed/house having only one room, the four sides of which was covered with blue plastic sheets. The shed was seen to be of temporary nature and it was having a temporary door also which was tied by one side with rope. It was mentioned that it has a tiled roof, slanting towards one side. Therefore, the prosecution contends that it was this nature of the building which made one witness to say that it was a shed and the other witness as a house. The number of the house as could be seen by PW3 at the time of preparation of Ext.P4 was IV/399. The Crl.A.No.1532 of 2003 -: 13 :- fact that search list was signed by the accused also gives further assurance to the evidence given by PWs.3 and 5, that search of that building was conducted by them and that accused was actually present at the time when the search was conducted. 13. The learned Prosecutor would submit that since it is a case where the accused was caught red handed while engaged in distillation, the question whether the house No shown as IV/399 is wrong or whether the owner of the house is actually the accused, would assume no relevance at all. The room mentioned above had a length of 31/2 m, width of 2.10m and height of 11/2 m on the one side and 3m on the other side. 14. The other ground that has been pressed in to service by the learned counsel for the accused is that serious prejudice was caused to the accused since PW3 who is the detecting officer himself conducted the investigation in this case. The learned counsel had relied upon the Crl.A.No.1532 of 2003 -: 14 :- decision in Megha Singh v. State of Haryana [AIR 1995 SC 2339] in support of his submission that the officer who conducted the search should not have proceeded with the investigation of the case. The conviction was set aside in that case not merely on the ground that officer who arrested the accused himself conducted the investigation but on other grounds also. There were discrepancies in the evidence given by two witnesses in that case. Of course, the learned counsel for the appellant would submit that here also, the independent witnesses did not support the prosecution and so it is to be held that as the investigation was conducted by PW3 himself it caused serious prejudice to the accused. The learned Public Prosecutor would submit that so far as this case is concerned, the detection of the offence was completed with the preparation of the search list and the registration of the F.I.R. That would itself complete the investigation of the case also and as such there remained nothing more to be investigated into by Crl.A.No.1532 of 2003 -: 15 :- another officer and as such the plea of prejudice is out of place especially because no such plea of serious prejudice was raised before the court below also. The decision in Naushad V. State of Kerala [2000 (1) KLT 785] was overruled by the Division Bench in Kader V. State of Kerala reported in [2001(2) KLT 407]. That decision was rendered in a case registered under the NDPS Act. But the principle enunciated in that decision is perforce applicable to the facts of this case. It was held by the Division Bench in the decision cited supra: “Unlike usual cases under the Criminal Procedure Code, in cased under the NDPS Act, by the time of arrest, main part of investigation will be completed and duty of the investigating officer is mainly in sending the samples for chemical analysis and other routine work and there is no likelihood of any prejudice in usual circumstances. Therefore, we are of the opinion that merely because a detecting officer himself is investigating officer or the officer of the same rank as that of the detecting officer is investigating the case and files report before the Court will not vitiate the proceedings under N.D.P.S. Act in the absence of proof of specific prejudice to the accused” Crl.A.No.1532 of 2003 -: 16 :- 15. In the instant case PW1 conducted search and recovered the contraband article and registered the case. Thereafter, as part of his official duty, he investigated the case and main part of the investigation as such was completed. The samples prepared were sent to the court by the very same officer on the next day along with the accused, the FIR, remand report and the contraband articles. There was no likelihood of any prejudice being caused to the accused. The aforesaid decision was followed in Subash V. State of Kerala reported in [2002 (2) KLJ 409]. 16. The apex court has held in State V. V. Jayapaul reported in [2004 (5) SCC 232]: “We find no principle or binding authority to hold that the moment the competent police officer, on the basis of information received, makes out an FIR incorporating his name as the informant, he forfeits his right to investigate. If at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer. The question of bias would depend on the facts and circumstances of each case and it is not Crl.A.No.1532 of 2003 -: 17 :- proper to lay down a broad and unqualified proposition, in the manner in which it has been done...” 17. This decision was followed by the apex court in S. Jeevanantham V. State [2004 (5) SCC 230]. Those cases were dealing with offence under NDPS Act. But the ratio decided in those case is applicable to the facts of this case as well. In Jeevantham cited supra PW8 therein was the officer who conducted the search and recovered the contraband articles and registered the case; the articles seized was narcotic drug. The accused could not point out any circumstances by which the investigation caused prejudice to the accused. It was held by the apex court that the officer (PW8) therein in his official capacity gave the information, registered the case and as part of his official duty later investigated the case and filed a charge sheet. It was found that the officer was not in any way personally interested in that case. Hence it was held that the court was unable to find any sort of bias in the process of investigation. Here also, nothing was pointed-out by the Crl.A.No.1532 of 2003 -: 18 :- defence to show that PW3 had any personal interest or that prejudice was caused by the case having been investigated by himself. At the risk of repetition it has to be said that the records and properties were produced by PW3 immediately after the contrabands were seized from the possession of the accused and as such investigation was practically over. In view of what is stated above the argument to the contrary advanced by the learned counsel for the appellant is found to be devoid of any merit. 18. Ext.P1, the search list and Ext.P2, the F.I.R and other documents reached the court at 10.30 AM on 28.8.2001 itself as can be seen from the seals and entries in the records. It means there was absolutely no delay in reporting the seizure and production of the properties in court. The evidence would show that the request for sending of the samples for chemical examination was also made without delay. 19. Here, it is a case where accused was found Crl.A.No.1532 of 2003 -: 19 :- distilling illicit arrack and he was caught red handed along with the contraband articles mentioned above and as such the decision in Sambasivan cited supra does not come to the rescue of the accused. On a thorough scrutiny of the entire evidence, I find that the findings entered by the court below that the accused/appellant was seen engaged in distillation of illicit arrack is perfectly correct. They were found in possession of the utensils, apparatus and wash etc. for the purpose of distillation. The ingredients would attract the offences under Secs.55(b) and 55(g) of the Abkari Act and as such the conviction of the appellant is only to be confirmed. The accused was sentenced to undergo R.I. for three years each and to pay Rs.1,00,000/- for the offences punishable under Secs.55(b) and 55(g) of the Act. The learned counsel submits that maximum leniency may be shown to the accused. Considering all the aspects, I find that substantive sentence can be reduced to R.I. for 18 months each, while confirming the sentence of fine and Crl.A.No.1532 of 2003 -: 20 :- default sentence. In the result, this Crl.A is disposed of as stated below :- The conviction of the appellant for the offences punishable under Secs.55(b) and 55(g) of the Abkari Act is confirmed. While confirming the sentence of fine and the default sentence awarded by the court below, the substantive sentence is reduced to R.I. for 18 months each which will run concurrently. N.K.BALAKRISHNAN, JUDGE. Jvt