IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 CRL.A.No. 544 of 2003() ------------------------------- SC.40/2000 of ADDL.SESSIONS COURT (ADHOC I), KASARAGOD .................... APPELLANT(S): ACCUSED --------------------- KOMARU, S/O KARIYAN, MATTATHODY VILLAGE, KASARAGOD. BY ADV. MR. SOJAN MICHEAL RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, (STATION HOUSE OFFICER KASARAGOD POLICE STATION), REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.544 OF 2003 ------------------------------ Dated this the 9th day of July, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed by the Additional Sessions Judge (Adhoc-I), Kasaragod in S.C.No.40/2000. The accused was charge sheeted for the offences under Section 55(a) and (g) of the Abkari Act, convicted and sentenced to undergo R.I for three years each and to pay a fine of Rs.One lakh each. But, the sentences were ordered to run concurrently. It is against that decision, the present appeal is preferred by the accused. 2. The points that arise for determination in the appeal are (1) whether the conviction under Section 55(a) is sustainable (2) whether the conviction under Section 55 (g) is sustainable (3) in case of default, what is the proper quantum of punishment. 3. Heard the learned counsel for the appellant and the Public Prosecutor. For the sake of convenience, all the points are considered together. Learned counsel for the appellant persuasively and strongly contends before me that there is 2 CRL.A.NO.544/03 large number of legal impediments standing in the way of the prosecution to arrive at a conclusion regarding the guilt of the accused in its favour. It is the case of the prosecution that on 20.3.1999 at 4.20 p.m the accused was found distilling illicit arrack and on information, the police party went to the place. They found wash as well as arrack in his possession and also the utensils for the manufacture of the illicit arrack. Ext.P1 is the seizure mahazer. It can be seen that about 13 material objects were taken from the scene of occurrence, of which, items 1 and 12 are the samples sealed and taken for the purpose of the case. The other materials are the vessels, the fire wood and the Can etc used for the purpose of preserving, making and manufacturing the contraband liquor. 4. PW1 is the police constable who accompanied PW3, the Circle Inspector of Police, who had made the detection. PW1 would depose that at about 4 p.m on 20.3.1999, they proceeded to the place Puthuman Harijan Colony and found the accused distilling illicit arrack. He had spoken about the arrest, seizure, sampling etc. The material objects are the aluminum vessels - Mos 1 to 3, the Can - MO4, the firewood 3 CRL.A.NO.544/03 pieces - MO5, the white Can - MO6 and a blue Can with the arrack - MO7. He had identified the accused also. He had been cross examined at length and he would depose that it was the C.I of Police, who caught hold of the accused. According to him, all the items seized from the place of occurrence had not been produced before the court. He does not remember what was the specimen seal that was used. He also speaks about the absence of label in Mos 4, 5 and 7. It is admitted by him that he has not stated anything about the sampling and sealing in his 161 statement. 5. PW3 is the Circle Inspector of Police under whose leadership the detection was done . He had spoken about the apprehension, arrest as well as sampling and sealing of the material objects. In the cross examination, he would depose that he did not enquire about Mohammed to whom the property belonged. It is also deposed by him that the wash sample was taken in a 750 ml capacity container. If the investigating officer has recorded that both the samples were taken in 375 ml bottle it is not correct is the version given by this witness. He would depose that after entrusting the 4 CRL.A.NO.544/03 material objects in the police station, he had not seen it. 6. PW4 is the Sub Inspector of Police, who had prepared the scene mahazer and forwarding note. According to him, requisition was made to send the material objects to the court on 27.3. 1999, but he would say that it is not seen in the forwarding note ie., it is seen only on 30.3.1999. The learned counsel for the appellant very strongly contends before me that the detection was on 20.3.1999 but the materials reached the court only on 30.3.1999 and therefore delay has caused prejudice. It is argued that the sample alleged to be taken has not been sent to the court. It has to be remembered as can be seen from the material objects that large number of articles were seized from the place which included aluminum vessels etc., and thondy list has been prepared on 27.3.1999 and the articles had reached the court on 30.3.1999. There is nothing suggestive to indicate that during the process of time any tampering has been done especially in the backdrop of the chemical analyst’s report that the sample that has been sent was intact and sealed and it tallied with the seal provided. The settled principle of law is that the court 5 CRL.A.NO.544/03 should ensure that the contraband seized from the accused is the one which is sealed and taken as sample and it is that sample which is sent for chemical analysis. All other formalities are to ensure the same and if the materials available show that the said things are done properly, minor mistakes here and there shall not be considered as vital to the prosecution. So, certain omissions are quite possible which does not mean that everything has to be suspected on account of that omission. As stated by me earlier, if the insulation of a proper sample is ensured then other materials has to be viewed in that backdrop. Neither PW1 nor PW3 has got any axe to grind against the accused in the case. They were exercising their function under the statute and in that process, they caught hold of the accused and had taken materials from the accused. The factum of recovery of the vessels which are made use for the manufacture of illicit arrack itself indicates that all is not well with the case of the accused. It is under those circumstances, I am inclined to hold that no prejudice has been caused. 7. Turning to the provisions of the Abkari Act, to convict a 6 CRL.A.NO.544/03 person, the learned counsel for the accused submits that, Section 55(a) may not be attracted for the reason that there is no export, import, transport or possession while illegally transporting. But it has to be held that Section 55(g) is squarely attracted and that conviction has to be maintained. So the accused can be found guilty under Section 55(g) and I set aside the conviction under Section 55(a) . So far as the sentence is concerned, it is submitted that the accused is aged about 60 years and he has got a large family to be looked after and there is no previous history of any conviction. So, I am inclined to reduce the punishment to one year and default sentence of imprisonment to 3 months. 8. In the result, the criminal appeal is disposed of as follows: 1.1. The conviction under Section 55(a) is set a side and the conviction under Section 55(g) is sustained. 2. The accused is sentenced to undergo S.I for a period of one year under Section 55(g) of the Abkari Act and to pay a fine of Rs. One lakh, in default of which, he shall undergo further S.I for 3 months. 7 CRL.A.NO.544/03 3.He shall be entitled to set off as contemplated under Section 428 of the Crl.P.C and the lower court shall execute the sentence. 4. M.N. KRISHNAN, JUDGE cl 8 CRL.A.NO.544/03 M.N. KRISHNAN, J. --------------------------- CRL.A.NO.544 OF 2003 ------------------------------ 9th day of July, 2009 JUDGMENT 9 CRL.A.NO.544/03