IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 CRL.A.No. 640 of 2003() ----------------------- SC.233/2000 of ADDL.SESSIONS COURT (ADHOC), KASARAGOD .................... APPELLANT(S): ACCUSED ------------------------------------------ H.MADHAVAN, S/O.KANNAN, CHENDALAM, KODOM VILLAGE, KASARAGOD DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.K.P.HARISH RESPONDENT(S): RESPONDENT ----------------------------------------------------- STATE - REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: “CR” V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.Appeal.No.640 of 2003 = = = = = = = = = = = = = = Dated this the 17 th day of September, 2009 JUDGMENT The appellant namely H.Madhavan, who was prosecuted by the Station House Officer, Rajapuram Police Station for offences punishable under Sections 55(b) and 55 (g) of the Abkari Act, challenges the conviction entered and the sentence passed against him by the Additional Sessions Court (Adhoc -I), Kasaragod for the offence punishable under Section 55(g) of the Abkari Act. 2. The case of the prosecution can be summarised as follows:- On 19.3.1999 at about 8.15 a.m., in the kitchen of his residential house at Chendhalam bearing building No.KB-X/70 of Kodom Belur Panchayat in Kasaragod District the accused was found in possession of 10 litres of wash kept for Crl.Appeal.No.640 of 2003 2 the preparation of arrack by illicit distillation. The accused has thereby committed offences punishable under Sections 55(b) and 55(g) of the Abkari Act. 3. On the appellant pleading not guilty to the charge framed against him by the court below for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 4 witnesses as P.Ws 1 to 4 and got marked 6 documents as Exts. P1 to P6 and 4 material objects as MOs. 1 to 4. 4. After the close of the prosecution evidence, the accused was questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. As this Crl.Appeal.No.640 of 2003 3 was not a case of no evidence for the prosecution, the court below did not record an order of acquittal of the accused under Section 232 Cr.P.C. The accused did not adduce any defence evidence when called upon to do so. 5. The learned Addl. Sessions Judge, after trial, as per judgment dated 17.3.03 acquitted the accused of the offence punishable under Section 55(b) of the Abkari Act but convicted him of the offence punishable under Section 55(g) of the Abkari Act. For the said conviction he was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1 lakh (Rupees one lakh only) and on default to pay the fine, to suffer rigorous imprisonment for six months. It is the said order which is assailed in this appeal. 6. I heard the learned counsel appearing for the appellant and the learned Public Prosecutor. Crl.Appeal.No.640 of 2003 4 7. The learned counsel appearing for the appellant made the following submissions before me in support of the appeal:- PW1 who was the Head Constable of Rajapuram Police Station who had accompanied PW4, the detecting officer would say that the distance from Attachakkanam is 300 metres. But PW3 the Village Assistant of Belur Village who prepared Ext.P1 site plan would say that the distance between the place of occurrence and Attachakkanam is 3 Kms. If so, the case of PW1 that they walked all the way to the place of occurrence from Attanganam, covering a distance of 3 kms in 15 minutes cannot be believed. This is a case in which PWs.1 and 4 would claim to have arrested the accused and seized the contraband liquor etc. from his dwelling house which is not a public place or an open space. Hence the arrest and seizure could not have been effected without a warrant in view of Section 34 of the Crl.Appeal.No.640 of 2003 5 Abkari Act. PW1 would say that the labels were fixed on all the M.Os. But during cross-examination he confessed that there was no label on any of the M.Os except MO2 Pot. PW2 who was the independent witness to the search and seizure has denied his signature in Ext.P2 search list. PW4 ,the Detecting Officer has confessed that he did not smell or taste the contents of the pot. No independent witness accompanied the Police party to the scene of detection. Eventhough the detection, arrest, search and seizure were on 19.3.1999, PW4 had admitted that the properties were produced before the court only on 22.3.1999. There is no evidence adduced as to who was in custody of the properties until then. Hence the Certificate of Chemical Analysis has no value at all. In the face of all these circumstances, the conviction entered and sentence passed by the court below cannot be sustained. 8. I am afraid that I cannot agree with the above Crl.Appeal.No.640 of 2003 6 submissions. PW1 is the Head Constable of Rajapuram Police Station who accompanied PW4, the Detecting Officer. PW2 is an attester to Ext. P2 search list prepared by PW4. PW3 is the Village Assistant of Belur Village who prepared Ext.P1 site plan. PW4 is the Sub Inspector of Police of Rajapuram Police Station who detected the offence. 9. What is unravelled by the oral and documentary evidence is the following :- On 19.3.1999 at about 8 a.m, PW4, the Sub Inspector of Rajapuram Police Station received credible information to the effect that there was illicit distillation of arrack in the Chendhalam Harijan colony. He immediately proceeded to the said colony in the Police jeep. PW1, the Head Constable along with ASI, PC Nos.750,757 and 863 were in the company of PW4. Since there is no motorable road to the Harijan colony from the place called Attachakkanam, the police party Crl.Appeal.No.640 of 2003 7 went by foot from that place. They reached the house of Kannan, the father of the accused at 8.15 a.m. The said house is made of mud bricks and thatched with cadjan leaves. They found arrack being illicitly distilled in the kitchen of the house. PW4 prepared a search memorandum and despatched it to the court through a police constable. Thereafter, in the presence of witnesses he carried out a search of the said house bearing building No.KB-10/70. PW4 seized MO1 aluminium pot having a capacity of 15 litres containing 10 litres of a liquid suspected to be wash, another aluminium pot (MO2) having a capacity of 10 litres, a round wooden plank with a pipe connected to it, a black jerry can with a capacity of 2 litres , some cow dung, a few firewood and some arrack. He took samples of wash in two bottles each of 375 ml capacity from the contents of the 15 litres aluminum pot and sealed the two bottles. The above properties were Crl.Appeal.No.640 of 2003 8 seized under Ext.P2 search list to which PW2 and one Gangadharan signed as attesters. The accused also affixed his signature against column 11 denoting the owner or occupier of the house. The accused was arrested at 8.25 a.m. PW4 and his police party then proceeded to the Police Station along with the accused, properties and the search records. After reaching the Rajapuram Police Station, PW4 registered Ext.P3 FIR. The accused was forwarded to the court along with remand report. PW4 entrusted the properties with the Station writer with a direction to produce the same before the Magistrate's Court (J.F.C.M-1), Hosdurg. The property list available in the lower court records shows that the properties including the two sealed bottles of sample were produced before J.F.C.M-1, Hosdurg on 22.3.1999. During the course of investigation PW4 prepared Ext.P4 scene mahazar. Ext.P5 is the forwarding note submitted by him before Crl.Appeal.No.640 of 2003 9 the J.F.C.M-I, Hosdurg requesting to forward the samples to the Chemical Examiner, Kozhikode for analysis of their contents. The said request was complied with. Exhibit P6 certificate of analysis issued by the Regional Chemical Examiner's Laboratory, Kozhikode shows that both the sample bottles despatched by the J.F.C.M-I, Hosdurg reached the laboratory with their seals in tact and the contents of the bottles was a brownish turbid liquid with a smell characteristic of wash and containing 6.98% and 7.05% by volume of ethyl alcohol. 10. The difference in the distance mentioned by PWs.1 and 4 on the one hand and PW3 on the other cannot be taken seriously to discard the prosecution case. It was not suggested to both PWs.1 and 4 that the distance from Attachakkanam junction to the house of the accused was 3kms. The testimony of a person (PW3) who was once upon a time a Village Assistant Crl.Appeal.No.640 of 2003 10 uncorroborated by any documentary proof and that too given after 4 years of the detection, cannot be decisive of the matter. Hence there is nothing improbable in the testimony of Pws.1 and 4 that they reached the house of the accused within 15 minutes of starting from the police station. Moreover, the prosecution witnesses were giving evidence after nearly four years of the occurrence and they cannot be expected to remember the details of the present detection. 11. It is true that except on MO2 aluminum plot having a capacity of 10 litres, the other MOs before court did not have labels at the time of trial. It should not be forgotten that eventhough the detection of the offence was on 19.3.1999, the trial of the case was in February, 2003. Until then, the properties other than the samples were entrusted to the custody of the Station House Officer. Hence the absence of labels on the properties when they Crl.Appeal.No.640 of 2003 11 were produced again before the court, does not falsify the credible testimony of Pws.1 and 4. Labels had been affixed on all the MOs from the scene of detection itself. The procedure which was followed was that after production of the properties before the J.F.C.M, all the properties except the samples were returned to the charging officer for being retained in the Police Station till the date of trial. Large quantities of liquor produced before courts in the various abkari cases, if stored in court premises, may pose the danger of fire hazard. That apart, there is also dearth of space in our courts to store huge quantities of liquor. Hence, it is quite possible that the labels on the rest of the MOs were either lost in transit or got effaced during their storage in the Police Station. But that does not render the prosecution case suspect to any extent 12. PW1 who is one of the attestors to Ext.P2 search list did not support to the prosecution and turned hostile to the prosecution. But courts are not unfamiliar with such Crl.Appeal.No.640 of 2003 12 witnesses who turn out to be cunning performers in the witness-box evidently with a view to salvage the accused from their criminal liability. In the face of the credible testimony of PWs1 and 4, the disloyality shown by PW3 is of no consequence (vide Sivaraman v. State of Kerala (1981 KLT SN P.9), Suresh v. State (1995(1) KLT 636) and Paravan v. State of Kerala (2007(1)KLT 396). 13. It is true that PW4 had admitted that he did not taste or smell the contents of MO1 pot. But what the pot contained was not arrack, but “wash” which is a mixture of water and sacharine material kept before fermentation. Arrack is a strong oriental liquor distilled from rice, molasses etc. Molasses or treacle is a viscid, dark coloured liquid drained off from raw sugar cane or beet sugar. “Wash” cannot give the taste of arrack. The word “wash” is not defined in the Abkari Act. But the definition of “liquor” contained in Section 3(11) of the Abkari Act is wide enough Crl.Appeal.No.640 of 2003 13 to include wash. The expression “liquor” is defined as follows:- “liquor includes spirits of wine, arrack, spirits, wine, toddy, beer and all liquid consisting of or containing alcohol”. The definition of “wash” in Rule 2(g) of the Kerala Abkari (Disposal of Confiscated Articles) Rules, 1996 is as follows:- “Wash” means a sacharine solution from which spirit is obtained by distillation. It also includes fresh wash or wort.” The word “wort” or “fresh wash” as defined under Rule 2(h) of the said Rules means a mixture of water and sacharine material before fermentation”. Thus, wash is a sugar solution which, after fermentation, can be converted into spirit or arrack through distillation. Going by the ordinary connotation of the Crl.Appeal.No.640 of 2003 14 expression “wash” also, it is fermented liquor ready for the distillery. “Wash” is thus the raw material for preparation of arrack which is a potable liquor containing alcohol. (See Paravan v. State of Kerala (2007(1) KLT 398). 14. It is true that eventhough the detection in this case was on 19.3.1999 the property reached the J.F.C.M-I, Hosdurg only on 22.3.1999. This was admitted by PW4. He has stated that he had entrusted properties with the station writer to be despatched to the court. Hence it must be presumed that until production before court the properties were in the safe custody of the Station writer. PW4 was not further cross-examined as to who was in custody of the properties till their production before court. The property list available in the court records shows that the properties reached the court on 22.3.1999 along with two sample bottles, the seals on which were intact. Crl.Appeal.No.640 of 2003 15 15. It is true that the accused was arrested and the properties were seized from the house of the accused which is not a public place or an open space and PW4 did not have a warrant. But when PW4 was proceeding hurriedly on a credible information received by him at the Police Station, at that point of time he could not have secured a warrant from the Magistrate. He had, however, despatched a search memorandum through a police constable who was in his company. That apart, the illegality in the search or seizure will not vitiate or render inadmissible the evidence of search. (See Radhakrishnan v. State -AIR 1963 SC 622, Pooran Mal v. Director of Inspection -1974(1) SCC 345, State of Maharashtra v. Natwarlal Damodardas Soni - (1980)4 SCC 669, Shyam Lal Sharma v. State of M.P. - (1972)1 SCC 764; State of Kerala v. Alasseri Mohammed - (1978) 2 SCC 386). Hence the alleged non- compliance of Section 34 of the Abkari Act is not fatal to the prosecution. Crl.Appeal.No.640 of 2003 16 16. This is a case in which the possession of “wash” along with apparatus for distillation including 2 aluminium pots, a round wooden plank with a pipe connected to it, a black jerry can with a capacity of 2 litres, firewood etc. were seized from the possession of the accused. He had not satisfactorily accounted for his possession of the same. Hence, the presumption under Section 64 of the Abkari Act is squarely attracted and the court is entitled to presume that in the absence of any satisfactory explanation of his possession of those articles, he has committed an offence punishable under section 55 of the Act. Section 64 of the Act reads as follows:- Presumption as to commission of offence in certain cases:- In prosecutions under section 55, Section 55B, Section 56A, Section 57, Section 58, section 58A and section 58B it shall be presumed until the contrary is proved, that the accused person has committed an offence under that section in respect of any liquor or intoxicating drug or any still, utensil, Crl.Appeal.No.640 of 2003 17 implement or apparatus whatsoever for the manufacture of liquor other than toddy or of any intoxicating drug, or any such materials as are ordinarily used in the manufacture of liquor or of any intoxicating drug, of the possession of which he is unable to account satisfactorily; and the holder of a license or permit under this Act shall be punishable, as well as the actual offender, for any offence committed by any person in his employ and acting on his behalf under Section 8 or section 55 or section 55B or section 56 or 56A or section 57 or section 58 or section 58A or section 58B as if he had himself committed the same, unless he shall establish that all due and reasonable precautions were exercised by him to prevent the commission of such offence. 17. In the light of the foregoing discussion the conviction entered against the appellant for the offence punishable under Section 55(a) of the Act does not call for any interference. The conviction is accordingly confirmed. Crl.Appeal.No.640 of 2003 18 Actually, the offence punishable under Section 55(g) was also attracted in this case. But the appellant was acquitted of the said offence and there is no appeal by the State. 18. What now survives for consideration is the question regarding the legality and extent of the sentence imposed on the appellant. Having regard to the fact that the volume of wash was only 10 litres and the appellant is stated to be a first offender, I do not think that the appellant deserves penal servitude by way of incarceration for three years. Accordingly, the sentence imposed on the appellant is reduced to rigorous imprisonment for 6 months. The sentence of fine imposed on the appellant by the Court below, is, however, not interfered with as it is the mandatory minimum. But the default sentence is reduced to rigorous imprisonment for 3 months. Crl.Appeal.No.640 of 2003 19 In the result, this appeal is disposed of confirming the conviction entered but modifying the sentence as above. It goes without saying that the appellant shall be entitled to set off under Section 428 Cr.P.C. Dated this the 17th day of September, 2009. V. RAMKUMAR, JUDGE sj