IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 CRL.A.No. 1010 of 2002() ------------------------------------- SC.234/2000 of IIIRD ADDL. SESSIONS COURT (ADHOC), THRISSUR .................... APPELLANT(S): ACCUSED --------------------- BAIJU, S/O. VELAYUDHAN, THECHANADAN HOUSE, ALOOR VILLAGE, THURUTHIPARAMBA DESOM, MUKUNDAPURAM TALUK. BY ADVS. SMT.K.V.BHADRA KUMARI SMT.ANILA GEORGE SMT.P.V.RADHAMANI RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CRL.MP.8034/2002 IN CRL.A. 1010/2002 DISMISSED 05.06.2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE TSS M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1010 OF 2002 ------------------------------ Dated this the 5th day of June, 2009 JUDGMENT This appeal is preferred against the conviction and sentence passed under Section 55(a) of the Abkari Act whereby the accused was found guilty and sentenced to undergo imprisonment for a period of one year each and to pay a fine of Rs.One lakh with default sentence of three months. The punishment was ordered to run concurrently. It is against that decision, the accused has come up appeal. 2. The brief facts necessary for the disposal of the appeal are stated as follows: It is the case of the prosecution that on 23.10.1997 at 6 p.m at Chalakudi Ashtamichira road at the junction where it turns from Kottattil to Vellanchira the accused was found in possession of 2 liters of arrack and a glass and therefore, he was restrained, searched and the liquid was seized, sample was taken, sealed and he was produced before the court and thereafter the sample was sent for analysis which revealed 2 CRL.A.1010/2002 that it contained 13.80% by volume of ethyle alcohol. PWs 1 to 5 and DW1 were examined. Exts. P1 to P7 and MOs 1 and 2 were marked. The court below, on analysis of the evidence found the accused guilty and convicted him thereunder. It is against that decision, the present appeal is preferred. 3. The points that arise for determination are whether the accused is guilty of the offences under Sections 55(a) and (i) of the Abkari Act (2) If there is anything to interfere with the decision rendered by the court below. (3) What is the proper punishment. 4. Points 1 and 2: Heard learned counsel for the appellant, who had very persuasively and effectively submitted before me that the whole case is a foisted one and that materials are lacking to link the accused with the crime and further that the procedural formalities contemplated under the provisions of the law are not complied with and therefore, the accused is entitled to an acquittal. On the contra, the learned Public Prosecutor submits that things had been properly analysed and 3 CRL.A.1010/2002 the court had shown leniency in the case of sentence. It is the definite case of the prosecution that the accused was found near the Chalakudy Ashtamichira road junction with a plastic can of 10 liters capacity which contained 2 liters of arrack. PW1 is the officer, who had conducted the search. He had deposed before the court about the seizure and arrest has been done. According to him, he was able to see the accused standing on the western side of the road with a black can and on seeing him, the accused attempted to run away. The Excise Officials followed, waylaid him and examined him and found 2 liters of liquid in his possession, which by taste and smell revealed to be alcohol. Thereafter in the presence of the witnesses, sample was taken in a 180 ml bottle and it was sealed and the remaining liquid was also sealed . He was arrested and produced before the court along with the material objects on the very next day. A glass was also found and it has been marked as MO2. In the cross examination, he had been asked regarding the time when he started the search. He also submits that he does not know to which side the house of Paulose faces. He had also 4 CRL.A.1010/2002 deposed the fact that he traveled in a Government vehicle and they have to run about 10 to 15 meters to catch hold of the accused. He had also spoken clearly about the sampling, sealing and further production before the court. It is admitted by him in cross examination that the seal was not available in MO1 and the cloth with which it has been tied was loosened. PW4 is the person who had accompanied PW1 and helped him for arresting etc of the accused. He had also deposed before the court that on 23.10.1997 at about 6 p.m they were able to see the accused about 15 meters away from the house of Varghese with a Can and that on examination it was found that he had a 10 liter can with him containing 2 liters of liquid which on smell and taste was known to be alcohol and thereafter sample was taken. In the cross examination also he had reiterated and there are minor contradictions between the evidence of PWs1 and 4. 5. Learned Sessions Judge had dealt with the contradictions to find out whether they are very fatal to the case of the prosecution. Contradictions appear to be one of the distance, secondly the distance which they have run etc. 5 CRL.A.1010/2002 There is also some discrepancy regarding the distance from where the vehicle was parked. In a case of this nature, it has to be stated that the cross examination of witnesses are done after 5 years from the detection of the offence and one cannot expect precisely to state these things by the two witnesses. Minor contradictions make the evidence more natural and reliable. Parrot like version after a period of 5 years will make it mere unnatural and untrustworthy. I am conscious of the fact that both the witnesses, PWs 1 and 4 are official witnesses. It is true that there are interestedness for them in the prosecution. Whether the evidence of such witnesses has to be totally ignored is a matter that had come up for consideration in so many decisions before this Court as well as the apex court. The caution given by the courts are that when a court analyses the evidence of interested witnesses, it must be done with more meticulous scrutiny. As laid down in very many decisions, it is the intrinsic reliability that is to be given weight in order to appreciate the evidence. PWs 1 and 4 were only discharging their official functions. They had no axe to grind against the accused. They did not have any 6 CRL.A.1010/2002 special intention to involve this person in an offence of this nature. The important aspects like seeing the accused, restraining the accused, seizing the liquid, sealing the sample etc are spoken to correctly by PWs 1 and 4. After 5 years when they were questioned regarding the distance or direction or facing of the house, they were not able to give clear answers. It will not affect the value of their evidence. As analysed by the court below, PWs 1 and 4 have given cogent evidence which is worthy for acceptance. Now regarding the technical aspects. It is true that in order to book an accused where the imprisonment is up to 10 years, meticulous following of the procedure is mandatory. Here PWs 1 and 4 had clearly spoken about the seizure, sampling and on the very same day along with the accused seized materials were produced before the court and the court had endorsed that it has received the material objects on that day except the sample bottle, the rest were returned to the Excise Officials to be produced as and when required. In a State of ours where we are finding it very difficult to get a suitable space to preserve things which are the material objects in large 7 CRL.A.1010/2002 number of cases and when it is dumped the mere tearing of a paper or loosening of the cloth cannot be taken seriously. But what is required is that at the time of production whether it was properly done. The reason being that in order to book an accused for an offence, it has to be positively proved that sample was taken from the liquid which was found in his possession. In this case, it was taken, sealed and it was produced before the court and thereafter little shake of the seal or tearing of paper does not matter much and the chemical analyst has also very clearly reported that the sample bottle was received and the seal was absolutely in tact. The procedural formalities are also properly complied with. Therefore from the forgoing decisions, I do not find any ground to interfere with the decision rendered by the learned sessions judge and therefore I confirm the finding of guilt under Sections 55 (a) and (i) of the Abkari Act. 6. Point No.3: Learned counsel for the accused very strongly canvassed before me that if the court confirms the judgment, there are grounds to show leniency for the reason that the accused is a 8 CRL.A.1010/2002 young man aged 24 years and there is no other criminal action initiated against him and he has got aged parents to be looked after and that he has not yet started living happily. After hearing this submission, I am inclined to show some leniency and therefore I feel that the sentence can be modified to six months and also to reduce the default sentence from 3 months to 2 months. 7. Therefore, the criminal appeal is disposed of as follows: 1. Finding of guilt under Sections 55 (a) and (i) of the Abkari Act is confirmed. 2. Sentence is modified and the accused is sentenced to undergo simple imprisonment for a period of 6 months each under Sections 55(a) and (i) which shall run concurrently and to pay a fine of Rs.One lakh and on default to undergo simple imprisonment for 2 months. M.N. KRISHNAN, JUDGE cl 9 CRL.A.1010/2002 10 CRL.A.1010/2002