IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 6TH MARCH 2008 / 16TH PHALGUNA 1929 CRL.A.No. 2032 of 2007() ------------------------ SC.968/2006 of ADDL.SESSIONS COURT (ABKARI CASES), KOTTARAKKARA .................... APPELLANT: ----------- REGHU KUMAR, C.NO.2184, CENTRAL PRISON, THIRUVANANTHAPURAM. BY ADV. LIJU M.P[STATE BRIEF] RESPONDENTS: ------------- STATE OF KERALA, REP.BY PUBLIC PROCECUTOR. BY PUBLIC PROSECUTOR, SRI PUZHAKKARA MOHAMMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Crl.Appeal No. 2032 of 2007 (D) ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 6th day of March, 2008 J U D G M E N T Reghu Kumar alias Reghu, Convict No.2184 of Central Prison, Thiruvananthapuram, is the appellant. He has preferred this appeal assailing the conviction and sentence passed against him by the Additional Sessions Judge (Abkari Cases), Kottarakkara, under Section 55(a) read with Sections 8(1) and (2) of the Abkari Act vide judgment dated 01/10/2007 in Sessions Case No.968/2006. 2. The prosecution case is that at about 6.25 p.m on 10/10/2005, the appellant was found in possession for sale 10 litres of arrack in two jerry cans with drinking glass and standing in front of Payattuvila Melathilveedu, Anayam, wherein he was residing and that was detected by PW.4, the Additional Sub Inspector of Police, Kottarakkara, and police party accompanying him. PW.4 effected seizure of the arrack, took samples therefrom in two 375 ml. bottles preparing Ext.P1 mahazar in that behalf, effected arrest of the appellant preparing Ext.P2 Crl.A.No.2032 of 2007 (D) -: 2 :- arrest memo in that behalf and going back to the police station he registered the case against the appellant as Crime No.983/2005 of Kottarakkara Police Station drawing up Ext.P3 F.I.R in that behalf. He forwarded material objects to court preparing Ext.P4 property list in 151 A form and submitted forwarding note for getting the samples of the material objects seized being got subjected to chemical analysis. Ext.P5 is the duplicate copy of the forwarding note so submitted and Ext.P6 is the certificate of the chemical analysis so obtained subjecting the sample to chemical analysis. On completion of the investigation, he laid charge before the Judicial Magistrate of the First Class-I, Kottarakkara, and the learned Magistrate, after complying with all the legal formalities, committed the case to the Sessions Division, Kollam, vide Committal Proceedings No.99/2006. The case was registered in the Sessions Division, Kollam, as Sessions Case No.968/2006 and the Sessions Judge made over the case to the Additional Sessions Judge (Abkari Cases), Kottarakkara, for trial and disposal. 3. On production of the appellant before the court below, he was provided with assistance of a lawyer on State Brief as he had not engaged a lawyer of his choice. Thereafter, preliminary Crl.A.No.2032 of 2007 (D) -: 3 :- arguments were heard; charge was framed against the appellant under Section 55(a) read with Sections 8(1) and (2) of the Abkari Act; was read over and explained to him and he was questioned. Thereupon, he pleaded not guilty and consequently a trial of the case was conducted by the court below. 4. On the side of the prosecution PWs.1 to 4 were examined; Exts.P1 to P7 were got marked and MOs.1 to 4 were got identified. On the prosecution closing their evidence, the appellant was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. According to him, he is having residence at his wife's house and the police was effecting his arrest while he was proceeding to his house to see his mother; and that he has not committed any offence and the case was being falsely foisted against him. However, he did not adduce any evidence in defence. 5. The court below considered the case in the light of the evidence adduced as aforesaid; found that the appellant has committed offence punishable under Section 55(a) read with Sections 8(1) and (2) of the Abkari Act, convicted him thereunder and sentenced him to undergo simple imprisonment for five Crl.A.No.2032 of 2007 (D) -: 4 :- years and to pay a fine of Rs.1,00,000/- and in default to undergo simple imprisonment for a further term of six months. Hence, this appeal by the aggrieved appellant from jail. 6. As the appellant had not engaged a lawyer of his choice, Adv.Sri.Liju M.P was appointed on State Brief to argue the appeal on behalf of the appellant. Arguments by the counsel on State Brief and the Public Prosecutor are heard. It is vehemently contended by the learned counsel for the appellant that the prosecution case of seizure of arrack in MOs.1 and 2 cans as also of MO.4 glass as being from the possession of the appellant does not stand established as there is no reliable and convincing evidence to prove the prosecution case; that PWs.2 and 3 are the only independent witnesses and both of them have not supported the prosecution case; that, therefore, the case rests solely on the testimony of PWs.1 and 4, both of whom are police officials in the detecting team; that the evidence of PWs.1 and 4 without supporting evidence from independent witnesses should not have been accepted to enter into a conviction of the appellant; that there is no evidence that the building in front of which the appellant is alleged to have been found engaged in sale of arrack belongs to the appellant; and that, however, Crl.A.No.2032 of 2007 (D) -: 5 :- though the seizure was effected on 10/10/2005, the material objects were produced before court under Ext.P4 property list only on 14/10/2005, three days after the occurrence; that therefore, there is no guarantee that the material objects and especially the contents therein had not been tampered with and that, therefore, the appellant deserves an acquittal at least granting him benefit of doubt. 7. It is true that there is four days delay in producing the material objects before court. All the same, no prejudice is shown to have been caused to the appellant on account of the belated production and there is not even a suggestion of the material objects having been tampered with by the police. The contention of the learned counsel for the appellant is that the appellant who is accused in another case was being arrested and this case was being foisted against him falsely. The said contention has to be appreciated separately and not along with the contention of belated production as in the event of case being foisted, nothing prevented the police from producing the material objects forthwith. Further, there is no suggestion in cross-examination that the material objects were not produced in court along with production of the appellant as the police were Crl.A.No.2032 of 2007 (D) -: 6 :- not having MOs.1 to 4 with them then, so as to be produced before court. PWs.2 and 3 are the attestors to Ext.P1 mahazar. PW.2 has admitted that he is attestor to Ext.P1. According to him, he signed in Ext.P1 near the water tank at Anayam. He has deposed that he saw the police there and thereafter the appellant also was being brought over there. He has also stated that he knows the appellant as also his house even from his childhood days. Still he was not asked as to where is the house of the appellant so as to develop the contention advanced at present that the appellant's house is not anywhere near the scene of occurrence at Anayam. Through PW.2, who has not supported the arrest and seizure and who is declared hostile, it is brought out in cross-examination by the defence that he was signing in paper wherein nothing had been written. PW.3 has also tendered evidence that the appellant is a neighbour and is known to him and that he has signed in Ext.P1 mahazar at Mandiram Junction on the request of the police and that then the appellant was also with the police. He has also been made to say in cross-examination that he has not seen the arrack or the can and that he was giving signed in Ext.P1 while it was a blank paper. The evidence of PWs.2 and 3 disowning having witnessed Crl.A.No.2032 of 2007 (D) -: 7 :- the arrest and seizure, in the circumstances, cannot be believed for a moment. 8. PW.4 is Additional Sub Inspector of Police, Kottarakkara, who detected the crime and effected seizure of arrack in MO.1 and MO.2 cans along with MO.4 drinking glass and PW.1 is the police constable who was accompanying PW.4 in the detection and seizure. PW.4 has given evidence that while he was conducting patrolling along with PW.1 and other police constables, he got information that sale of arrack is taking place at the house of the appellant at Anayam and that therefore, they went over there through the pathway near to the water tank at Anayam; that then they saw the appellant in front of his house holding a can and a drinking glass; that on seeing them the appellant attempted to take to heels but he was intercepted and questioned and that on examination by smell and taste, it was found that the contents in the can is arrack; that consequently, he effected arrest of the appellant; conducted his body search and recovered Rs.140/- which was sale proceeds of arrack; that he took samples from each cans in two bottles each containing 200 ml of arrack preparing mahazar in that behalf; effected arrest of the appellant preparing Ext.P2 arrest memo and Crl.A.No.2032 of 2007 (D) -: 8 :- produced the appellant before court with remand report and produced the material objects before court on 14/10/2005 preparing property list in 151 A form and that till the material objects were so produced on 14/10/2005, the material objects were in his safe custody. He has proved Ext.P5 forwarding note and Ext.P6 as the report of chemical analysis of the samples of the liquid contained in MOs.1 and 2 cans. Ext.P6 shows that 42% and 42.5% by volume of ethyl alcohol was present in the samples. Nothing has been brought out in cross-examination of PW.4 to discredit his testimony or to render his evidence unreliable for any reason whatsoever. According to him the police station is located only 10-15 meters away from court and that occasionally delay of 2-3 days may happen in producing the material objects before court. He has strongly denied the suggestion that the material objects were being planted and the case was being foisted against the appellant. 9. PW.1, a police constable, who was accompanying PW.4 in the detection and seizure has also given evidence corroborating the testimony of PW.4 on all material particulars. PW.1 has also deposed that the appellant was standing in the courtyard in front of his house. To none of these witnesses Crl.A.No.2032 of 2007 (D) -: 9 :- suggestion was made to the effect that the appellant was not having residence at that place or that the alleged house from the courtyard of which he was arrested finding him engaged in sale of arrack was not house belonging to him. In fact, if at all there is truth in the contention advanced that the appellant was not residing in the said house, PWs.2 and 3 were the best persons who were competent to speak to that aspect and nothing was asked to them regarding that aspect. By the delay of four days in producing material objects before court, no prejudice also is shown to have been caused to the accused and there is no suggestion even that the material objects were tampered with. Thus, on a proper appreciation of the entire evidence in the case it can be seen that the defence had not been able to set up contentions which would suggest the existence of any infirmity in the prosecution case so as to render it unreliable on any aspect, whatsoever. In the circumstances, the finding of the court below that the appellant has committed offence under Section 55(a) of the Abkari Act read with Sections 8(1) and (2) of the Act is only to be confirmed. The conviction of the appellant therefore deserves to be upheld. Crl.A.No.2032 of 2007 (D) -: 10 :- 10. It is vehemently contended before me by the learned counsel for the appellant that the court below has imposed a sentence of simple imprisonment for five years and has also imposed a fine of Rs.1,00,000/- and in default to undergo simple imprisonment for a further term of six months and that the sentence so imposed is highly excessive and shocking and that considering the nature and circumstances of the offence and the appellant, he is liable to be inflicted with a much lessor punishment only. 11. Having considered the entire aspects of the case and also having heard the learned Public Prosecutor, I am of the view that the punishment awarded to the appellant is much on the high side and that the term of imprisonment has to be reduced. In the result, while confirming the conviction of the appellant for offence under Section 55(a) of the Abkari Act read with Sections 8(1) and (2) thereof, I reduce the sentence of imprisonment awarded to the appellant to a term of two years and reduce the sentence in default to payment of fine to simple imprisonment for a term of four months. The appeal is thus allowed in part. 12. Communicate copy of this judgment to the appellant through the Superintendent of Central Prison, Crl.A.No.2032 of 2007 (D) -: 11 :- Thiruvananthapuram, forthwith. Also direct the said Superintendent to release the appellant forthwith, if the term of imprisonment as modified above has already expired and provided his detention is not required to be had in connection with any other case. K.P.BALACHANDRAN, JUDGE ms Crl.A.No.2032 of 2007 (D) -: 12 :- K.P.BALACHANDRAN, J. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Crl.Appeal No. 2032 of 2007 (D) ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ J U D G M E N T 6th March, 2008