IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 27TH AUGUST 2009 / 8TH BHADRA 1931 CRL.A.No. 1054 of 2002(D) ------------------------------ (AGAINST THE JUDGMENT IN SC 315/00 OF III ADDL. SESSIONS JUDGE, (ADHOC) FAST TRACK COURT, THRISSUR.) APPELLANT(S): 1ST ACCUSED ------------------------- ANIL S/O. VELU, VAYALIKADA HOUSE, EAST CHALAKUDYVILLAGE, POTTA, MUKUNDAPURAM TALUK. BY ADV. SRI.N.B.ANOOP RESPONDENT(S): COMPLAINANT & STATE ------------------------------------------- 1. THE C.I. OF POLICE, CHALAKUDY. 2. STATE OF KERALA, REP; BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1054 OF 2002 = = = = = = = = = = = = = = = Dated this the 27th day of August, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed by the III Addl. Sessions Judge,(Adhoc), Fast Track Court-I, Thrissur in S.C.315/00. The appellant before this Court is the first accused who has been convicted and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for a period of three months for the offence u/s 55(b) of the Abkari Act. It is against that decision the accused has come up in appeal. 2. The points that arise for determination are: (1)Whether the materials are sufficient to hold that the accused is guilty of the offence alleged u/s 55(b) of the Abkari Act? (2) In case of guilt, is the sentence excessive? Crl. Appeal NO. 1054 OF 2002 -:2:- Points 1 and 2: 3. Heard the learned counsel for the appellant as well as the Prosecutor. It is the case of the prosecution that on 29.5.98 at about 1.30 a.m. four persons were seen manufacturing illicit arrack on the puramboke thodu on the east of the house of Varghese, S/o Ouseph with drums, aluminum vessels etc. and thereby committed the offence u/s 55(b) of the Abkari Act. As accused No.3 was absconding, no trial could be conducted against him and after trial A2 and A4 were found not guilty and A1 alone was found guilty and convicted. 4. The learned counsel for the appellant would submit before me that the evidence in this matter is not sufficient and there is no proper procedure adopted and the benefit of doubt should go to the accused. I had carefully gone through the evidence as well as the documents submitted in this case. Ext.P1 is the seizure mahazar which would show that on getting reliable information the police party went to the spot and they found that illicit arrack was being distilled in the Crl. Appeal NO. 1054 OF 2002 -:3:- thodu. It is reported that the iron drums had been used for the purpose of igniting the liquid and aluminum vessels are used for wash and the other utensils necessary for distilling of wash were also found there. It was also seen that the liquid was getting poured into a Can which contained illicit arrack. It is submitted that except A1 others could not be apprehended and thereafter the sample was taken, sealed and case registered. 5. Ext.P5 is the property list which would show that the properties were produced before Court on 1.6.98. Ext.P4 is the chemical examiner's report which would show that three bottles of 150 ml. colourless liquid and one litre of brownish turbid liquid were sent for examination and the seal on each bottle was in tact and found tallied with the sample seal provided. On examination it was found that the respective items contained 39.72%, 31.15%, 29%, 12.62% by volume of ethyl alcohol. 6. PW1 is the constable who had accompanied PW4. He had deposed before Court that after 12 o'clock on that Crl. Appeal NO. 1054 OF 2002 -:4:- night they proceeded to the place as per the information given by the Sub Inspector of Police. Out of the four persons three persons absconded and one person was caught red-handed. His name is Anil and he is the accused. He had also deposed that there was an iron stand and a drum. Coconut husk was put in the drum and it was ignited and above that there was an aluminum vessel which contained about 30 litres of wash. There were connecting tubes and it was falling in a can which contained about 4 litres of arrack. He had been examined and in the cross examination he had spoken about the details which he had spoken in the chief examination and some contradictions are also brought out regarding the timing. He has also told that the police party was able to see with the light of the oven. He had also stated that the bottles which were taken as the sample were sealed and he does not remember whether labels were attached to it. A perusal of Ext.P1 seizure mahazar also would reveal that the police had recorded the presence of the accused on the spot at the time of taking the sample. Crl. Appeal NO. 1054 OF 2002 -:5:- 7. PW4 is the Sub Inspector of Police. He had deposed how they have proceeded to the spot, how they found the drum, the steel iron stand etc. and how Anil was apprehended, arrested and the material objects taken. He had been cross examined at length and it is true that he had not prepared the arrest memo. According to him, it was dark in the night and there was light produced by the burning of the oven. On asking questions like how to reach the thodu he was not able to give proper answers and it was on account of the absence of light in the night he could not do it. He had submitted about the sealing of the material objects etc. in detail. It is also stated that the material objects were in the custody and later it was produced before Court. 8. PW3 is the Circle Inspector of Police who had conducted investigation and laid the charge. PW2 is the Village Officer who had prepared the plan. Now the learned counsel would contend that there is really no correct evidence to come to the conclusion that A1 has been apprehended from the spot. It is the definite case of the prosecution that four Crl. Appeal NO. 1054 OF 2002 -:6:- persons were seen distilling arrack and on seeing them three escaped and the present accused was caught red handed and it was in his presence the sampling, sealing etc. were done. There is no question of identifying that person for the reason that he was apprehended and he was produced by the evening on the very same day before Court and the Court has remanded him to judicial custody. It has to be remembered that the case was registered at 3.15 a.m. on 29.5.2009 and even before 5 p.m. on the same day the accused has been produced before the Magistrate and remanded to the judicial custody. So the arrest of the accused from the place of occurrence is probabilised by all these factors. 9. So far as the sampling and sealing is concerned arrack had been taken in three bottles and wash has been taken in a one litre bottle. It is submitted that it has been sampled. It is also to be stated that on 1.6.98 itself the sample has been produced before court and subsequently except the sample bottles the rest of the material objects were returned to the police officials for safe custody. Now the very Crl. Appeal NO. 1054 OF 2002 -:7:- principle behind following the procedural formalities ritualistically is to convince that the particular liquid which was seized from the accused is taken as sample of and the said sample is produced before court and that sample is sent for chemical analysis. 10. In this case the sample reaches the court as early as on 1.6.98. Now the learned counsel would contend before me that the forwarding note is not marked and it is not known how the bottles were sent for chemical analysis. These are all regular, routine matters that are conducted by the courts. No court of law will sent a bottle for chemical analysis unless there is a request by the prosecuting agency. Though the forwarding note is not there in the case bundle for the reason it has not been sent it before me. The chemical analyst report, Ext.P4 refers to the number of Judicial First Class Magistrate's order who has ordered deputation of a constable for sending the sample for chemical analysis. Therefore it is also not a serious defect in this case. So from the materials available it is crystal clear that the police party had gone to the spot, they Crl. Appeal NO. 1054 OF 2002 -:8:- had found the accused therein and collected the samples, arrested him, produced him before court and the sample had been sent for chemical analysis and it is found to contain percentage of ethyl alcohol. 11. One more point that is argued by the learned counsel is that there is nothing to show that arrack was manufactured. Manufacture is defined u/s 3(19) of the Abkari Act. It can be seen that it is an inclusive definition and manufacture includes every process. Here at the time of inspection the oven was burning and there was distilling going on and wash was found in the aluminum vessel which all indicate that it is a manufacturing process. So the finding of the Court below cannot be said to be wrong. 12. Now turning to the question of sentence. The learned Sessions Judge had convicted the accused to undergo imprisonment for two years. When he was questioned u/s 313 it is submitted that he has to look after his mother and therefore he must be pardoned. Taking into consideration the fact that he is only one link in the whole thing I feel a Crl. Appeal NO. 1054 OF 2002 -:9:- punishment of two years is excessive which can be reduced. I feel the justice can be met by directing him to undergo imprisonment for a period of four months and a further default sentence in case of non payment of fine, for two months. 13. In the result the Crl.Appeal is disposed as follows: 1) Conviction and sentence u/s 55(b) of the Abkari Act is sustained. 2) The sentence is modified and the accused is sentenced to undergo rigorous imprisonment for a period of four months and to pay a fine of Rs.1,00,000/- and in default to undergo a further imprisonment of two months. 4) The accused is entitled to entitled to set off as contemplated under S.428 Cr.P.C. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 1054 OF 2002 -:10:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 1054 OF 2002 = = = = = = = = = = = J U D G M E N T 27th August, 2009