IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 CRL.A.No. 1805 of 2003() ---------------------------------- SC.1212/2002 of III ADDL.SESSIONS COURT, KOLLAM CRIME NO.113/1999 OF EAST KALLADA POLICE STATION. .................... APPELLANT(S): 2ND ACCUSED: -------------------------- HAREESH, S/O. BHANU, MOOLAKKAYALIL VEEDU, IRANGU KADAVU, KADAKKAVOOR VILLAGE, THIRUVANANTHAPRAM DISTRICT. BY ADVS. MR.M.BALAGOVINDAN MR.P.M.JOSEPH RESPONDENT(S): COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1805 OF 2003 ------------------------------ Dated this the 15th day of June, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed by the Third Additional Sessions Judge, Kollam in S.C.No.1212/2002. The prosecution was initiated against three persons, of which the prosecution against the first accused ended on account of his death and the third person was acquitted after the trial. But the second accused, who is the appellant before me, was found guilty under Section 55(a) of the Abkari Act and directed to undergo R.I. for 5 years and also to pay a fine of Rs.One lakh and in default to undergo S.I for a period of one year. It is against that decision, the second accused has come up in appeal. 2. Learned counsel for the appellant very strongly contends that the materials are insufficient to hold the second accused guilty of the offence. It is the case of the prosecution that on 21.8.1999 at about 4.30 p.m when the Sub Inspector of Police, East Kallada was on patrol duty, they found a car under suspicious circumstances. The car was 2 CRL.A.NO.1805/03 intercepted and by the time they reached the car one person namely the first accused ran away from the place of the incident and the 2nd accused , who was the driver of the car was available. He was arrested, seizure was also conducted and on investigation it was learned that he was transporting the cardboard boxes from the residence of the third accused. PWs 1 to 5 were examined and MOs 1 to 3 were marked. 3. The points that arise for determination are whether the appellant namely the 2nd accused is guilty of the offence under Section 55(a) of the Abkari Act (2) Is there anything to interfere with the conviction and whether the sentence imposed on him is harsh. 4. Point No.1: According to the prosecution, the appellant was the driver in charge of the vehicle bearing Registration No.KL-7/C 7368. The Sub Inspector of Police, East Kallada had intercepted the car and found from the car 20 cardboard packets which contained 24 bottles of 375 ml XXX Rum. According to the prosecution, one of the bottles was opened and sample was taken to the extent of 200 ml and sealed and the balance was 3 CRL.A.NO.1805/03 also sealed as MO1 and the remaining bottles were taken into custody as MO2 series. 5. I will refer to the evidence of PWs 1 and 2, which in turn did not help the prosecution at all and they had been cross examined. It is now a days quite frequent that the independent witnesses for the reasons thus known to them do not support the case of the prosecution. But the official witnesses had been examined as PWs 3 to 5 and I will refer to their evidence first before finding out the acceptability of their evidence. PW3 was a head constable who accompanied PW5 and he had spoken about the interception of the car and running away of the first accused, thereafter conducting the search and seizure. He had stated that there were 8 cardboard boxes on the back seat of the car and 12 cardboard boxes were on the dickey of the car. According to him, the Sub Inspector of Police, broke open the seal of one of the bottles and found it to be Red Sun XXX Rum and sample was taken. After taking the sample, the remaining liquor in the bottle was sealed as MO1. MO2 series are 479 bottles which is alleged to be taken from the car. It is also recorded by the 4 CRL.A.NO.1805/03 court that the seal of one of the bottle is removed by the court and that the bottle is seen machine sealed and the seal of the Beverages Corporation is over the lid. He was cross examined at length. He had spoken about taking of the sample. But it appears that when he was questioned, he had answered that the bottle which was opened, in that bottle itself sample the was taken. He has explained it as a mistake. PW4 is another constable, he had also spoken about the incident as spoken to by PW3. He had also spoken about the seizure, sampling etc. He had also stated that if it is recorded that the sample was taken from the very same bottle, it is only a mistake. PW5 is the Sub Inspector of Police. He had also spoken in line with the evidence of PWs 3 and 4 and also about the seizure, search, sampling and production before the court. So, the main contradiction of the point which the learned counsel wanted to rely on is that the witnesses had deposed that the sample was taken in the same bottle. It is nothing but a mistake for the reason that a portion of the liquid unless it is poured out, the same bottle cannot be used for taking sample. It is evident from the fact 5 CRL.A.NO.1805/03 that the remaining liquid which was remaining after taking of the sample was there in the bottle itself and that bottle is marked as MO1. The chemical analysis report also shows that the sample bottle was found in tact. So, it is only a mistake which cannot be taken as a serious one to show that the case of the prosecution is wrong. Then the learned counsel had drew my attention to the fact that sealing of the remaining 479 bottles even according to PW5 was only done in the police station and therefore, it creates suspicion. It can be seen from the production of the bottles that the seal was in tact and the court had opened one of the bottles by breaking the seal which indicate that it was properly sealed and it was also having the seal of the Beverages Corporation. 6. Now it is held by this Court that if large number of similar labels and sealed bottles containing same type of articles are seized, chemical examination can be done by taking one bottle or certain number of bottles sealed at random. This court gives an explanation to the earlier decision rendered by this Court in Krishnankutty v. State of Kerala (2005(3) KLT 568). Therefore, taking of the sample 6 CRL.A.NO.1805/03 from one bottle will not destroy the case of the prosecution. Then it s contended that there has been delay in producing the bottles before the court. I have perused the list and it is seen that though the articles were seized on 21.8.1999, it was produced only on 1.9.1999. But as discussed by me earlier, everything was found to be in proper position and the seal was there and even at the time of preparing the seizure mahazer, it is written that all the bottles contained the seal of the Beverages Corporation. The court, while examination, opened one of the bottles by breaking the seal and the court was also able to find out the seal of the Beverages Corporation was in tact. So, it is very clear that there was no possibility for any tampering being done in these bottles. A mere delay of 8 days cannot militate against the prosecution. Now, we find the evidence of PWs 3 to 5, they are the official witnesses. Of course they are partly interested in the prosecution, Time and again, the courts have held that just because they are the official witnesses, their evidence need not be simply brushed aside. The courts must meticulously scrutinize the evidence. The evidence of PWs 3 to 5 does not 7 CRL.A.NO.1805/03 create any suspicion in my mind as well. Thus, the factum of possession of 480 bottles which were recovered from the car is proved. By applying Section 64 of the Abkari Act, when the prosecution version is proved, the burden shifts on the accused to prove or to explain how he became into possession or otherwise the offence under Section 55 will be attracted. The accused namely the appellant herein is not able to give any possible explanation at all for his possession and therefore, it has to be held that when 480 bottles were recovered and some notes are also recovered from the pocket of the accused, it can be inferred that the bottles were on the process of transportation which is intended for sale. Therefore,, Sections 55(a) and (i) are attracted. I do not find any ground to interfere with the said decision. 7. Now coming to the question of sentence. It is seen that the appellant was a driver of the car. The case of the prosecution is that the first accused, who was sitting on the front seat of the car, escaped and ran away. The court found that the prosecution has not established that these bottles were recovered from the house of the third accused and 8 CRL.A.NO.1805/03 it has ended in acquittal against him. We cannot say that he is the only person, who is behind all these illicit trafficking as well as sale. Therefore, I feel that some indulgence has to be shown. I feel, interest of justice can be met by imposing S.I. for 6 months under Section 55(a). He is also directed to pay fine of Rs. One lakh and in default of which, he shall undergo S.I for a period of 2 months. 8. In the result in the criminal appeal is disposed of as follows: 1. The finding of guilt under Section 55(a) of the Abkari Act is confirmed. 2. The sentence is modified and the appellant namely the second accused is directed to undergo S.I for a period of 6 months under Section 55 (a) of the Abkari Act. He is also sentenced to pay a fine of Rs. One lakh and in default of which, he shall undergo S.I for a period of two months. He is also entitled to set off as envisaged under Section 428 of the Cr.P.C. The lower court shall execute the sentence. M.N. KRISHNAN, JUDGE 9 CRL.A.NO.1805/03 cl 10 CRL.A.NO.1805/03 11 CRL.A.NO.1805/03