IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 18TH DECEMBER 2008 / 27TH AGRAHAYANA 1930 CRL.A.No. 2363 of 2008(A) ------------------------------ S.C.NO.396/2002 OF THE ADDL. SESSIONS COURT. ....................................... APPELLANT : -------------------- KAMALASANAN, C.NO.2884, CENTRAL PRISON, TRIVANDRUM. BY ADV. PREETHA P.S.(STATE BRIEF) RESPONDENT : ----------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR. BY SRI. P.A. SALIM, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 18/12/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K. MOHANAN, J. ------------------------------ Crl. A. No. 2363 of 2008 ------------------------------------ Dated this the 18th day of December, 2008 JUDGMENT This is an appeal preferred by the sole accused in Sessions Case No.396/2002 from the jail, where he is undergoing imprisonment in pursuance of the impugned judgment. As per the impugned judgment, the accused was convicted under Section 55(a) of the Abkari Act and accordingly, he was sentenced to undergo Simple imprisonment for two years and to pay a fine of Rs.1,00,000/-. 2. The prosecution case is that on 22/06/1999 at about 6.30 P.M, the accused was found in possession and engaged in the sale of 3 liters of arrack in a Jerry Can and accordingly, the accused was arrested from the spot with contraband article, the container and also with a drinking glass. Thus according to the Police, the accused has committed the offence under Sections 55(a) and (i) of Abkari Act. On the basis of the above allegation, Crime No.218/1999 was registered in the Ehzhukone Police Station and investigation was undertaken and Crl. A.No. 2363/2008 2 the final report was filed in the Judicial First Class Magistrate Court at Kottarakkara, thereupon C.P. No.59/2001 was instituted. As per order dated 25/06/2001 in C.P. No.59/2001, the learned magistrate committed the case to the Sessions Court and the Sessions Case made over it to the Assistant Sessions Court, Kottarakara. Thereafter, the case was transferred to the trial court for disposal. When the accused appeared, after hearing him and the Public Prosecutor, a formal charge was framed under Sections 55(a) & (i) of the Abkari Act, which read over and explained to the accused and he pleaded not guilty. Thereafter, the prosecution adduced evidence consists of oral evidence of PWs 1 to 3 and documentary evidence such as Exhibits P1 to P5. M.Os.1 to 3 were identified and marked as material objects. There was no evidence, either oral or documentary from the side of the defence. After completion of prosecution evidence, the accused was questioned under Section 313 of the Cr. P.C. and put to him all the incriminating evidence brought out by the prosecution, and he denied the same. The accused took the stand of total denial. After hearing the case on merit, the trial court found that the accused is guilty under Crl. A.No. 2363/2008 3 Section 55(a) of the Abkari Act and accordingly he was sentenced to undergo Simple Imprisonment for a period of two years and to pay a fine of Rs.1,00,000/-. He was further directed to undergo Simple Imprisonment for 6 months more, in case of default in the payment of fine amount. It is the above conviction and sentence challenged in this appeal. 3. As the appellant/accused is undergoing imprisonment and the appeal is preferred from the jail. State Brief was appointed and I heard the counsel appointed as State Brief and also the learned Public Prosecutor. 4. PW3 is the Sub Inspector of Police, the officer who detected the offence and PW2 is the Police Constable, who accompanied PW3 at that time. According to PW3, that on 22/06/1999, while he was travelling on patrol duty along with the police party, he got information that the accused engaged in the sale of arrack by standing in the Sugarcane plantation owned by one Janardhana Pillai. When they reached the Sugarcane plantation, found the accused standing there by holding M.O.1 Jerry Can and M.O.3 drinking glass. Crl. A.No. 2363/2008 4 Thus, PW3 deposed that the accused was intercepted and on questioning him in the presence of witnesses, he found that the Can contained about 3 litres of arrack. Accordingly, the illicit arrack was seized as per Exhibit P1 Mahazar and accused was arrested at 6.30 P.M. Exhibit P2 is the arrest memo. He returned to the Police station and registered Crime No.218/1999 of Exhukone Police station for the offence under Sections 55(a) and (i) of the Abkari Act. Exhibit P3 is the F.I.R.. The accused and the contraband articles were produced before the Court. Exhibit P4 is the 151 A form prepared and proved by PW3. Since there was no sufficient space in the court, the articles returned to the police for the safe custody. Subsequently, PW3 submitted requisition before the court below for sending the sample for chemical analysis and accordingly, obtained Exhibit P5 report. He had questioned the witnesses and recorded their statements. During the trial, he had identified M.Os. 1 to 3. PW2 also deposed in terms of prosecution case as that of PW3. The independent witness PW1 is an attestator to Exhibit P1, mahazar and on his examination he had deposed that he did not know the accused but he has admitted his Crl. A.No. 2363/2008 5 signature in Exhibit P1. On the basis of above evidence of prosecution, the trial court found that the accused is guilty under Section 55(a) of the Abkari Act. 5. Learned counsel for the appellant submits that the accused was falsely implicated in the crime and the scene of occurrence is not properly proved by the prosecution. It is pointed out that though the articles were seized on 22/06/1999, the same were produced before the court only on 28/07/1999 and hence there is an unexplained delay, during which the evidence have been tampered. Therefore, according to defence and learned counsel for the appellant, the prosecution has failed to establish and prove its case beyond reasonable doubt. 6. Learned Public Prosecutor submitted that the prosecution has established the case with sufficient materials and evidence. It is his submission that testimony of PWs 2 and 3 together with Exhibits P1, P4 and P5 would reveal that the sample was collected from the spot itself and the same was sent for chemical analysis and obtained Exhibit P5 report, which would show that the sample contained Ethyl Alcohol at 45.63% by volume and according to the Prosecutor, the prosecution Crl. A.No. 2363/2008 6 has thus correctly proved that the accused was in possession of the contraband article. 7. I have carefully gone though the evidence of PWs 2 and 3 and also documentary evidence such as Exhibits P1, P4 and P5. The only case put forward by the accused is to the effect that there was a delay in reaching the contraband articles in the court. It is also the case of the defence that the accused was implicated in the crime falsely at the instance of his employer, where the accused was employed and crime was registered at the instance of the said employer. Though, such a plea was taken, no evidence was adduced by the defence and no attempt was made to make out the case from the prosecution evidence also. Regarding the delay in reaching the articles before the trial court, it is to be noted that as per prosecution case, the accused was found in possession of the contraband articles and the articles were seized then and there. Subsequently, the sample was taken from the M.O.1 Can, which contained the contraband article. Such sample was sent for chemical analysis through the court and thereafter obtained Exhibit P5 report. So the seizure is proved beyond doubt and also proved that Crl. A.No. 2363/2008 7 what seized from the possession of the accused is the contraband article, namely, the illicit arrack. It is true that there is some delay in reaching the article in the court. The said delay in no way can be described as a culpable delay. Though the accused has challenged the delay, nothing has brought on record to show that the delay was caused any prejudice to the accused. Every delay need not be prejudicial, unless it is proved that such delay caused prejudice to the accused. Therefore, the contention based upon the delayed receipt of contraband articles is devoid of any merit. It is to be noted that all these points were elaborately considered by the court below and all these contentions rejected by the court below by assigning cogent reasons. No ground is made out to take a different view from that of the trial court. Consequently, the conviction is confirmed. 8. With respect to the sentence, it is submitted that the quantity involved is only three liters of illicit arrack, but the sentence imposed is disproportionate and exorbitant. It is also submitted that the appellant/accused is not involved in any other similar crime and therefore a lenient view may be taken. Crl. A.No. 2363/2008 8 9. I have carefully considered the above submission. In view of the particular facts and circumstances involved in this case, I am of the opinion that certain modification can be made with respect to the sentence. In the result, the sentence of imprisonment of two years awarded is reduced to six months for the offence under Section 55(a) of the Abkari Act. With respect to the sentence of fine, no interference is called for, because only the minimum amount fixed by the statute is imposed against the accused. But the default sentence according to me can also be reduced from six months to two months. Set off is allowed under Section 428 of Cr.P.C. 10. As per the records, it is seen that the accused had been in custody for 38 days as under trial prisoner, from the date of his arrest till the release on bail. After the impugned judgment also that is from 3/05/2008 onwards he is undergoing imprisonment. As the sentence has already modified and reduced and set off allowed under Section 428 of Cr.P.C., the appellant/accused is entitled to get released from the jail. Therefore, there will be a direction to release the appellant/accused forthwith, if he is not required in any other case. Crl. A.No. 2363/2008 9 In the result, the appeal is disposed of confirming the conviction and reducing the sentence as indicated above and directing to release the appellant forthwith as he had already undergone the modified sentence. V.K. MOHANAN, JUDGE scm