IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 CRL.A.No. 258 of 2003(A) ----------------------------------- SC.NO.206/2000 OF ADDL. SESSIONS COURT (ADHOC-I), THODUPUZHA .................... APPELLANT/ACCUSED: ---------------------------------- AYYAPPAN, S/O.PERUMAL, LEKSHAMVEEDU COLONY, BABUNAGAR, MARAYOOR VILLAGE. BY ADV. MR.K.GOPALAKRISHNA KURUP. RESPONDENT/COMPLAINANT: -------------------------------------------- STATE OF KERALA, 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 22/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A. NO. 258/2003-A: ORDER ON CRL.M.P. NO. 1405/2003 IN CRL.A. NO. 258/2003 DISMISSED 22/06/2009. SD/- M.N.KRISHNAN, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. M.N.KRISHNAN, J = = = = = = = = = = = = = = == = = = = = = CRL. A. No. 258 OF 2003 = = = = = = = = = = = = = == = = = = = = = Dated this the 22nd day of June 2009. JUDGMENT This is an appeal preferred against the conviction and sentence passed in S.C 206/00 of the Additional District and Sessions Judge (Ad hoc)-I, Thodupuzha. The accused was charge sheeted under Section 55(a) of the Abkari Act. He was found guilty and was sentenced to suffer Rigorous Imprisonment for a period of 3 months and to pay a fine of Rs. 1,00,000/- in default of payment of which to suffer simple Imprisonment for one month. It is against that decision, the accused has come up in an appeal. 2. The points that arise for determination are:- (1) Whether there is sufficient evidence to convict the accused under Section 55(a) of the Act. (2) Whether the court below has erred in analysing the materials before the court to arrive at a decision. 3. Points Heard the learned counsel for the appellant as well as the prosecutor. CRL. A. No. 258 OF 2003 2 4. The learned counsel for the appellant had very strongly contended before the court that the evidence available in this case is lacking and the procedural formalities to be complied with are not done properly and therefore there is a suspicion in the whole prosecution case and so the accused should be acquitted. On the contra, the prosecutor would contend that things are in order and properly explained. 5. First of all, I will refer to the evidence of PWs 1 to 3. PW.1 is the independent witness examined. He had turned hostile to the prosecution. So nothing turns out on that. PW.2 is the Police Constable who had accompanied the Sub Inspector of Police. He had deposed that when their party reached Kovilkadavu in the jungle, they were able to see the accused. There was a bottle in his hand. The Sub Inspector of Police apprehended the accused and examined the bottle. There was 1.5 litres of arrack which was confirmed by smelling and tasting it. The Sub Inspector had seized the liquid and taken the samples, sealed and then arrested the accused. In the cross- examination, he had deposed that the accused was seen sitting in CRL. A. No. 258 OF 2003 3 the jungle. He was seen from a distance of 15 metres. He had reiterated the taking of the sample and sealing of it. 6. PW.3 is the Sub Inspector of Police. He had deposed that they reached the place at about 7.30 p.m. and at that point of time, saw the accused sitting inside the jungle. There was a bottle with the accused which contained 1.5 litres of arrack. It was smelt and tasted to find out. As per the mahazar, the bottle was seized, samples were taken and again sealed. It was sent for Chemical Examiner's Report and it was marked as Ext.P3. In the cross-examination, it is stated that the accused was seen at a distance of 3 or 4 feet. We are also concerned about production of the material object before the court. Before considering the technical arguments of the learned counsel so far as the evidence of the PW.2 and PW.3 are concerned, it is the evidence of official witnesses. In a criminal trial, especially under the Abkari Act whether the evidence of the official witnesses can be accepted has come up for consideration in a large number of decisions. The dictum laid down is that if the evidence of those witnesses are trustworthy by meticulously scrutinizing it and if CRL. A. No. 258 OF 2003 4 it is found that they are intrinsically reliable and inherently probable, then it can be used to find the guilt of the accused. An appreciation of the evidence of PW.1 and PW.2 in this case does not show that there is any material defect with the same. They have no axe to grind against accused. Their evidence has not been shattered in cross-examination. Therefore, I am prepared to accept the evidence of PW.2 and PW.3 in this case. 7. Now turning to the technical argument by the learned counsel. In Ext. P1 mahazar it is written as 100ml whereas it is described as 150 mls in the property list. So the learned counsel argues that it is not the sample taken that is sent for chemical examination. At the first blush, this argument appears to be quite persuasive but it has to be analyzed in the back drop of the further proceedings that had taken after the seizure of the material objects. The Sub Inspector of Police had prepared a list of property to be produced before the court on 27.07.1998 which has reached the court on 03.08.1998. There are four items of articles that had been produced before the court. They are, (1) 1.5 litre plastic Can with 1.200 litres of arrack. CRL. A. No. 258 OF 2003 5 (2) The glass with yellow and rose flavors. (3) An empty bottle. (4) Two 150 ml bottles of arrack marked as S1 and S2 and sealed. 8. Again it can be seen that a forwarding letter had been addressed to the court to send it for chemical examination where it contains the same description. It also contained the impression and seal marked as KP2/1D. Now I will refer to the Chemical Examiner's Report. The Chemical Examiner has received all these four items and had found that the seal on the bottle was in tact and found tallied with the sample seal provided. A covering letter was also addressed along with the report stating whether it was necessary to send back the materials remaining after the examination by the examiner. An analysis of these material would revel that the contraband liquor which was seized from the accused is properly sealed and it is that liquid which had been sent for chemical examination. So it is clear that no hardship is caused to the person from whom it is recovered. The learned counsel has cited a decision of this court reported in 2007(1) KLT-720 (Sasidharan v. State of CRL. A. No. 258 OF 2003 6 Kerala). In that case, the learned Judge held that prosecution had a duty to prove that it was the sample taken from the contraband from the accused which had reached the hands of the Chemical Examiner in that condition. It was a case whether there was no evidence to show that the sample was taken from the contraband liquor which was produced before the court by the official of the court. The person who had taken the sample was not examined. Under such circumstances, the court held that the link is not proved and it has caused injustice to the accused and so it required interference. Then the learned counsel had cited the decision reported in 2007(1) KLT -971. It was a case where the court held that in the absence of any evidence to prove with residue and sample were kept in proper custody till the date of presenting the same before the court the possibility of tampering with sample taken and residue seized cannot be ruled out. Here the things were taken properly sealed and it was sent to the Chemical Examiner for Report. In this particular case not only the sample bottles were sent to the Chemical Examiner but the residue which sealed was also sent CRL. A. No. 258 OF 2003 7 for chemical examination and the Chemical Examiner's Report revealed that all the packets were in tact. It was also to be stated just because there is a delay of 4 or 5 days in making the sample reach before the court it does notlead to a conclusion that there was tampering. The court which receives samples is bound to see whether the material objects are in tact while producing before the court. So I am strongly of the view that in this case, there is no tampering and no prejudice has been caused to the accused and therefore the Chemical Examiner's Report can be accepted to find that the accused was in possession of contraband liquor which contained percentage of volume of Ethyl Alcohol. The learned Counsel then had relied on 2007(3) KHC- 739. It was a case where the court felt that there was a doubt regarding the nature of the seal which is alleged to have been put on the sample of the contraband. From the materials available and in the forwarding note, a specification of the subscription sealed is well defined and with that in tact it has reached the Chemical Analyst. So that decision will not help the learned counsel. Another decision referred to by the learned CRL. A. No. 258 OF 2003 8 counsel is the decision reported in 2007 KLT-3666. It was a case where the learned Judge of this court held that it is a burden of the prosecution to prove that the sample from the contraband in the possession of the accused was taken and it has reached the Chemical Examiner. From the materials available in the present case, I have no hesitation to hold that things are done properly. Moreover, it has to be stated that in cases of this nature, a dictum to be applied are based on the facts and circumstances of that case with the general principle in mind so that the mind of the court should be free from suspicion regarding the correctness of the procedure followed by the officials and that it has not caused any injustice or prejudice to the accused. From the discussion made above, I am confident that no prejudice has been caused and therefore I held that there is nothing to interfere with the provisions under Section 57 of the Abkari Act. 9. Now turning to the sentence the court has sentenced the accused for imprisonment for a period of three years and pay a fine of Rs. 1,00,000/- and default simple imprisonment for a CRL. A. No. 258 OF 2003 9 period of one month. It has to be stated that the court has not be very harsh because the punishment has upto 10 years of imprisonment but considering the quantity involved in the case and the age of the person and the other circumstances, I am inclined to reduce the imprisonment by one month. In the result, the criminal appeal is disposed of as follows. 1. The finding of guilt of the accused under Section 55(a) of the Abkari Act is confirmed. 2. The sentence is modified and he is directed to undergo simple imprisonment for a period of 2 months and to pay a fine of Rs.1,00,000/- and in default of which, suffer further imprisonment for a period of 15 days. The lower court shall execute the sentence. Sd/- M.N.KRISHNAN JUDGE kkms/