IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 15TH JULY 2009 / 24TH ASHADHA 1931 CRL.A.No. 1169 of 2003() ----------------------------------- SC.320/2001 of ADDL. SESSIONS FAST TRACK COURT-II, PALAKKAD .................... APPELLANT/ACCUSED: --------------------------------- ANANDAN, S/O. RANGANATHAN, EASWARAN KOYIL ROAD, AVINASSI, COIMBATORE DISTRICT. BY ADV. MR.M.G.KARTHIKEYAN MR.NIREESH MATHEW RESPONDENT/COMPLAINANT: -------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.C.M. NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1169 OF 2003 = = = = = = = = = = = = = = = Dated this the 15th day of July, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed by the Addl. Sessions Judge(Fast Tract Court- II), Palakkad. The accused was charge sheeted for the offence u/s 55(a) of the Abkari Act and on trial was found guilty of the said offence and was sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.1,00,000/- and in default of payment of fine to undergo further imprisonment of one year. It is against that decision the accused has come up in appeal. 2. The points that arise for determination are; (1)Whether there is sufficient materials to hold that the accused has committed the offence u/s 55(a) of the Act? (2) In case of guilt, whether the sentence awarded is excessive? Crl. Appeal NO. 1169 OF 2003 -:2:- Points 1 and 2: 3. It is the case of the prosecution that on 16.11.97 at about 4 p.m. the accused as a cleaner of a mini lorry bearing Reg.No.TN 39/F-4569 was traveling along with his driver A1 and when they reached the Walayar Excise Check-post it was found that they were transporting 2,000 liters of spirit from Karnataka to Kerala without any licence or permit and therefore action was initiated. It has to be stated that the driver of the lorry namely A1 died and A3 the owner of the lorry still remains to be traced out. So the cleaner of the lorry alone had stood the trial. The learned counsel for the appellant very seriously contends before me that in order to establish the guilt of the accused especially in a case of this nature there must be meticulous and scrupulous following of the procedural formalities and the Court should be totally satisfied with the sample alleged to be taken form the mini lorry is properly sealed and it reaches the Court in the same condition and it must be that the liquid which is sent for chemical analysis otherwise prejudice will be caused to the accused and it will result in miscarriage of justice. There Crl. Appeal NO. 1169 OF 2003 -:3:- cannot be any quarrel with the proposition submitted by the learned counsel for the appellant. But what is to be looked into is whether the materials satisfy the conscience of the Court in that regard. We have to remember that in criminal cases for example in the case before me the alleged offence is of the year 1997 and the examination of the witnesses is on June 2003 that is almost six years. One cannot convert the evidence in a criminal case into a memory test and if that approach is made it will also cause prejudice resulting in injustice being carried out. So the Court has to analyze and find out whether the evidence available before Court is trustworthy in order to find the accused guilty in a case. 4. Now I will refer to the evidence of PW1. PW1 was the preventive officer attached to the Walayar Check-post and on that date he saw mini lorry coming at a high speed and therefore it was stopped and when interrogated the driver and the cleaner told him that they were proceeding for purchase of fish. There were perplexion in their faces. They were asked to get down and in the presence of the sales tax officers the vehicle was examined. There were 75 numbers of fish tray. Crl. Appeal NO. 1169 OF 2003 -:4:- Thereafter the vehicle was meticulously examined. It was found that there was an aluminum sheet screwed and when it was removed they were able to find out two cabins and in each of the cabins there were liquid which on smell and taste were found to be spirit. The driver and cleaner were arrested and from the containers 375 ml samples were taken in two bottles each and it was sealed and marks as A and B were put in those bottles respectively. He had been examined at length and in the cross examination so many suggestions were put regarding the illicit trafficking of arrack etc. The material point that was attempted to be brought out is that as per Ext.P6 four samples were taken from the vehicle before the Asst. Excise Inspector and that he had also taken four samples. There is no mention about the marks A and B in Ext.P6. In the re-examination it has been stated that two bottles each from the cabins were taken. PW2 is the person who was along with PW1 and he had also spoken in line with what PW1 has stated. But in the cross examination he would depose that in the 75 trays in the lorry there was liquid of 20 liters each. He speaks about the taking of sample and putting the Crl. Appeal NO. 1169 OF 2003 -:5:- identification marks A and B. In the re examination he would submit that all the plastic trays were empty at that time. PWs.3 and 4 are two independent witnesses who as usual for the reasons best known to them had turned hostile to the prosecution. PW5 is the person who was the excise inspector who had recorded the statements of the witnesses. Then the material evidence is that of PW7. PW7 is the Asst. Excise Inspector who had received the vehicle, samples etc. He had also prepared the forwarding note and that the samples were produced before court on 17.11.97 itself. According to him that it was the samples entrusted to him that was forwarded to the court. He would say that he did not forward the samples taken by him to the Court which he had taken from the Station. He would refer to Ext.P12 and would say that what is stated as per Ext.P12 is two sealed samples and nothing is mentioned about the identification marks and Ext.P12. Then he speaks about the production of the vehicle etc. before the Excise Inspector and in the re-examination he would depose that out of the four samples given to him he had sent two samples to the Court and he had retained two Crl. Appeal NO. 1169 OF 2003 -:6:- samples. He would also say that he had put his seal. In the cross examination he had very specifically stated “................................................................................ ...........................................” But he would submit the Preventive Officer had never entrusted him the specimen seal. So it is in this back ground and evidence the matter requires analysis. 5. The crux of the argument is that there is inconsistency between the evidence of PWs.1 and 2 with respect to the quantum of spirit which is alleged to be seized. Since PW2 has stated that 75 trays contained 20 liters of spirit each. But in the re-examination he had stated that 75 trays were empty at that point of time. So it is very well explained. 6. Learned counsel had very strongly contended before me regarding the sampling and sealing. A perusal of the evidence of PWs.1 and 2 would reveal four samples were taken on 16.1.97. It was sealed. The evidence of PW7 would reveal that all the four samples were handed over to him. It was two bottles out of that four bottles which according to Crl. Appeal NO. 1169 OF 2003 -:7:- PW7 had been sent to the Court along with a forwarding note. On a mere reading of Ext.P6 it can be seen that from the police station for the reasons best known to him he had also taken the four samples. He would further depose that though he had taken four bottles he had not sent it to the Court for analysis. Only two bottles out of the four bottles of the sample taken by the Preventive Officer had been sent to the Court for chemical analysis. So it is clear what had been sent. 7. Now the learned counsel also draw my attention to the evidence of PW7. There is a statement that he had also affixed his seal in such bottles. It is certain that the prosecuting agency should have been more careful and seen the seal used by PW1 also was sent. But it does not mean that some bottles were sampled and something else was sent to the Court. PW7 has deposed that he had received two bottles and those two bottles had been forwarded to the Court. It was also clear that he had not sent any sample which is alleged to have been taken by him. A total analysis of the materials would reveal that the prosecution has succeeded in establishing that the accused and the cleaner of the lorry were Crl. Appeal NO. 1169 OF 2003 -:8:- apprehended and in the presence of them samples were taken. It was sent for analysis which revealed that it contained 94.20% per volume of ethyl alcohol. 8. Now the learned counsel would contend in order to attract S.55(a) of the Abkari Act there must be proof regarding conscious possession. The cleaner is a person who knows everything about that lorry and it is a common practice that these persons are the part and parcel of such things. So ignorance cannot be envisaged to show that he never knew that there was spirit in the lorry. So the accused had been apprehended while illegally transporting spirit which is a prohibited one and therefore it squarely attracts S.55(a) of the Act. 9. Now turning to the question of sentence. It is the cleaner of the lorry who has become the material victim and it is certain that he would not be the brain behind these types of activities. Somehow or other it is very unfortunate that the persons who are the brain behind are seldom apprehended and the poor people who also join the system are caught hold of and they became the sufferers. It is certain that they are Crl. Appeal NO. 1169 OF 2003 -:9:- also consciously supporting such illegal activities and becomes part of social menace to the society. But in this case as stated by me earlier the cleaner is sentenced to undergo imprisonment for seven years and to undergo a default sentence of one year. I exercise my discretion and reduce it to three years and reduce the imprisonment for default sentence to six months. In the result the Crl.Appeal is disposed as follows. (1) Conviction and sentence u/s 55(a) of the Abkari Act is confirmed. (2) The sentence is modified and he is sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/- in default of which he is directed to undergo a further imprisonment of six months. (3) The accused is also entitled to set off as contemplated under law and the lower Court shall execute the sentence. M.N. KRISHNAN, JUDGE. ul/-