IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 6TH APRIL 2009 / 16TH CHAITHRA 1931 CRL.A.No. 675 of 2002() ----------------------- SC.66/2000 of ADDL. SESSIONS COURT (ADHOC), FAST TRACK COURT NO.1, THRISSUR ............................................ APPELLANT(S): ACCUSED: ------------------------------------------ KUMARAN, S/O. APPANATH KORAMAN, KATTAKAMPAL VILLAGE, DESOM, TALAPPILLY TALUK, THRISSUR DISTRICT. BY ADVS. MR.P.VIJAYA BHANU, MR.P.M.RAFIQ. RESPONDENT(S): COMPLAINANT: ---------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON CRL.M.P.NO.5692/2002 IN CRA.NO.675/2002 DISMISSED 06/04/2009 SD/- S.S.SATHEESACHANDRAN,JUDGE /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.APPEAL.NO.675 OF 2002 (C) ----------------------------------- Dated this the 6th day of April, 2009 J U D G M E N T The accused is the appellant. He was prosecuted for the offence punishable under Section 55 (g) of the Kerala Abkari Act, for short, the 'Act', on a report filed by the Excise Inspector, Kunnamkulam Range. He had pleaded not guilty to the offence. The learned Additional Sessions Judge, after trial, found him guilty of the offence, and convicted him thereunder, sentencing him to undergo rigorous imprisonment for one year and to pay a fine of Rs.1 lakh with default term of rigorous imprisonment for six months more. Questioning the legality and correctness of the conviction and sentence, the accused has preferred this appeal. 2. The gist of the prosecution case is that, the accused was apprehended by an excise party headed by PW4, the then Excise Inspector, Kunnamkulam Range at about 11.30 a.m. on CRL.A.675/02 2 10.11.1997, on finding him with a plastic vessel containing 20 litres of wash, without any authority or permit, at a place in a public road in Kattakambal Village. Sample was collected from the contraband detected and sealed at the spot preparing Ext.P1 seizure mahazar. The residue, after collecting the sample, was destroyed. The accused arrested was later enlarged on bail on production before the court. The crime registered over the seizure of the contraband from the accused after investigation, led to filing of a charge indicting the accused of the offence under Section 55 (g) of the Act. 3. After committal and the case being made over to the Additional Sessions Judge for trial and disposal, pursuant to summons the accused entered appearance. Charges framed under Section 55 (g) of the Act, after complying with the formalities, being read over and explained to the accused, he pleaded not guilty. Prosecution examined PWs.1 to 5, got marked Exts.P1 to P8 and identified MO1 to prove its case. The accused, when questioned under Section 313 of Cr.P.C., maintained his innocence. He did not adduce any defence CRL.A.675/02 3 evidence. The learned Additional Sessions Judge, after appreciating the materials produced, found the accused guilty and he was thereupon convicted and sentenced as indicated above. 4. I heard the learned counsel for the accused and also the learned Public Prosecutor. 5. Conviction of the accused is assailed by his counsel as unsustainable under law and facts contending that the court below has misappreciated the evidence causing miscarriage of justice. Other than the testimony of the Excise Officials connected with the detection of the offence and seizure of the contraband, which is imputed as highly interested and partisan, no independent evidence was let in by the prosecution to prove its case against the accused, submits his counsel. The detecting officer, PW4, it is contended, committed grave illegality in destroying the residue after collecting the sample and he had no authority to do so. The residue should have been produced before the court and only CRL.A.675/02 4 on orders of the Court, it could have been destroyed, submits the counsel. In Ext.P1 mahazar, the colour of the liquid carried in the plastic vessel by the accused is stated as yellowish is pointed out by the counsel with reference to the colour of the liquid covered by the sample, allegedly collected from the plastic vessel, as brownish in Ext.P7 chemical report of the analyst to attack the sampling made in the case, contending that there is no assurance that the sample sent over for analysis was collected from the contraband seized in the case. In the aforesaid circumstances, it is the submission of the counsel, that the accused is atleast entitled to the benefit of doubt. In the alternative, it is submitted, if for any reason, the conviction of the accused is found sustainable, sentence imposed against the accused, which is stated to be harsh and excessive, may be interfered with and reduced. 6. The point that arises for consideration is whether the conviction imposed against the accused is liable to be interfered with on any of the grounds canvassed in the appeal. CRL.A.675/02 5 7. I have perused the records of the case giving consideration to the submissions of the counsel. I do not find any merit in the submission that the evidence of the excise officials, who were connected with the detection and seizure of the contraband, requires corroboration from independent source for acceptance. PW4, the detecting officer and PW1, the excise official, who was present with him when the contraband was seized from the possession of the accused, at the time and place alleged, both have given evidence in tune with the prosecution case. Nothing has been brought out to doubt the intrinsic worth of their testimony. The accused has no case nor even a suggestion that these excise officials had any ill-will or animosity towards him. The learned Magistrate, who had the opportunity to watch the demeanour and deportment of these witnesses, found their testimony reliable and trustworthy, which after going through, I find no reason to differ with. PWs.2 and 3, the attestors to Ext.P1 mahazar had turned hostile to the prosecution case does not in any way affect the merit of the prosecution case. The evidence of the excise officials has to be appreciated applying the same CRL.A.675/02 6 yardstick applicable to any other witnesss examined before a court. It is ridiculous to contend that their evidence for acceptance requires corroboration from independent source. Corroboration is not a rule of law, but one of prudence. It is for the court to decide on the facts and circumstances presented in a given case, whether corroboration is required or not for acceptance of the testimony of a witnesses on a particular point. So much so, it is only to be stated that the evidence of PWs.1 and 4 is not liable to be impeached for the reason it is not corroborated from any independent source. That line of attack pressed into service to assail the conviction deserves to be taken into consideration only for its rejection. The colour difference in the liquid covered by the sample as stated in Ext.P1 mahazar with reference to the statement made by the analyst in Ext.P7 report, which had been highlighted as seriously affecting the merit of the prosecution is nothing but an innocuous circumstance. Sample collected on the date of seizure, as seen from the records, was subjected to analysis after three months. Contraband seized was wash, a material from which arrack is distilled. Wash, it need not be CRL.A.675/02 7 pointed out, over a period of time will get contaminated. So much so, the colour of the liquid in the sample which at the time of sampling was yellowish, in all probabilities, could have turned brownish over the period of three months, and that circumstance does not in any way show that there was improper sampling or that the sample sent over was not the representative sample collected from the contraband seized. In fact, perusing the evidence of PWs.1 and 4, I find no serious challenge had been made nor any circumstance brought out to show that there was improper sampling on seizure of the contraband and that had in any way caused prejudice to the accused. The residue, after collection of the sample, was destroyed by PW4 without authority and he was incompetent to do so, is another challenge to assail the conviction. I find the very same challenge had been pressed into service before the trial Judge and found against by the learned Additional Sessions Judge pointing out that the provisions of Excise Manual conferred authority on the excise officials to destroy the seized contraband like wash, which are likely to became so offensive and contaminated over a period CRL.A.675/02 8 of time. So much so, the destruction of the residue by PW4, the Excise Inspector, after collecting the sample can only be stated to be proper, valid and correct, and at any rate, that circumstance cannot be pressed into service to impeach the conviction. Sample collected from the contraband seized from the possession of the accused, on analysis, was found containing 13.42 percent by volume of ethyl alcohol as evidenced by Ext.P7 report. The accused has not accounted for the possession of the wash kept by him in contravention of the provisions of the Act. Wash, the material possessed by him in the plastic vessel MO1, no doubt, was intended to be distilled for preparation of arrack. He was rightly and correctly convicted for the offence under Section 55 (g) of the Act and the challenge against the conviction fails. The accused, at the time of seizure of the contraband is seen to be aged 33 years. No previous conviction under the Act or for any other offence has been proved against him. He appears to be a first offender. Contravention of the provisions of the Act constituting the offence committed by CRL.A.675/02 9 him relate to the possession of wash, the material used for distillation of arrack. Having regard to the totality of the facts and circumstances involved and also the young age of the accused, I order that the substantive term of sentence be reduced to six months rigorous imprisonment retaining the mandatory minimum fine prescribed by the Statute, Rs.One lakh, with default term of rigorous imprisonment for six months, as imposed by the learned Sessions Judge. Sentence is modified as indicated. Except to the extent of modification of the sentence as above, the appeal fails in all other aspects, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.Appeal.No.675 OF 2002 (C) --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 6th April, 2009