IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 CRL.A.No. 1032 of 2003() ------------------------ SC.485/1999 of ADDL. SESSIONS COURT (ADHOC), KOZHIKODE .................... APPELLANT/ACCUSED: ----------------------- CHANDRAN, AGED 45, S/O.CHERIAKKAN, KOLANGARATH, EDAKKARA, KOLAKKATTU, KOZHIKODE DISTRICT. BY ADV. SRI.C.C.THOMAS, SENIOR ADVOCATE RESPONDENT/COMPLAINANT: -------------------------------- STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, ATHOLI POLICE STATION, KOZHIKODE DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR B. JAYASURYA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------- Crl.A.No.1032 of 2003 ----------------------------------------- Dated this the 6th July, 2009 JUDGMENT This appeal arises from conviction and sentence passed against the appellant under Section 55(a) of the Abkari Act to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- and on failure to pay the fine amount, accused shall undergo simple imprisonment for a further period of nine months. 2. According to prosecution, on 19.10.1998, PW1, Sub Inspector of Police got information, while on patrol duty, that petitioner was engaged in sale of arrack from his house. PW1 and police party, including PW2, police constable, went to the spot and found the accused standing on the southern court yard of his house carrying a 10 litres can. He attempted to ran away and he was apprehended. On examination of the can, which was in possession of the accused, it was found to contain 5 litres of arrack. Accused was questioned and arrested and the articles were seized. There was also a glass, MO2, which was seized from his possession. Two samples drawn from the liquor Crl.A.1032/03 2 contained in MO1. The accused was arrested at the spot at 7.10 p.m on 19.10.1998. Mahazar was prepared, investigation was conducted by PW4 and charge was laid by the Sub Inspector. 3. The evidence consist of oral testimony of Pws 1 to 4 and Exhibits P1 to P6 and MO1 and MO2. The accused did not adduce any evidence, but he denied the allegations and contended that this is a false case. Heard both sides and perused records. 4. Learned counsel for accused put forward the following arguments: (1) That MO1 and MO2 were not labelled, though the witnesses said that those were labelled, on which the signature of accused and the witnesses were affixed; (2) The two samples were not produced before the Court and one sample was not made available in the court; (3) PW4 is the Assistant Sub Inspector, who conducted the investigation and it is illegal in the light of the decision reported in Deepamol v. State of Kerala (2007(4) KLT 173) and Subash v. State of Kerala (2008(2) KLT 1047); and (4) The sentence is highly excessive. 5. It is argued by learned counsel for appellant that the witnesses deposed before the court that MO1 and MO2 were Crl.A.1032/03 3 labelled and the signatures of the accused and witnesses were affixed on the same, but the labels on MO1 and MO2 did not contain any signatures. Therefore, the finding that the accused was found in possession of MO1 and MO2 is not acceptable. On going through the evidence of PW1 and PW2, who are examined to prove the seizure of the articles and the detection of the offence, I do not find that either PW1 or PW2 has given evidence that MO1 and MO2 were labelled and it contained signatures of accused and witnesses. 6. On the other hand, the definite case is that no signature of the accused or witnesses were taken on the labels affixed. In the cross-examination of PW1, he has specifically stated that though nothing stood in the way of obtaining signatures of accused and witnesses on the can, such signatures were not obtained. PW2 was also questioned on this aspect and he also gave evidence in the same lines that on the label, the signatures of accused and witnesses were not taken. Therefore, the argument raised by the learned counsel is inconsistent with the evidence adduced in this case and hence, it is rejected. 7. The next argument raised is that though two samples were seized from the place of occurrence, those were not Crl.A.1032/03 4 produced before the Magistrate Court. Evidence was given by the official witnesses that samples were produced before the Magistrate Court and documents were also marked in support of the prosecution case. Exhibit P4 is the forwarding note and it reveals that two samples were produced before the court. 8. It is also seen from the documents that the learned Magistrate sent two sample bottles for chemical examination as per request dated 27.10.1998. This is produced along with Exhibit P4. The chemical analysis report, which is marked as Exhibit P5 shows that two sealed bottles, each contained 370 ml of liquor alleged to be contained, were received in this case by the analyst and those were chemically analysed and Exhibit P5 report was given. In the light of this evidence, the argument that two sample bottles were not produced before the court cannot be accepted. 9. Next argument is that PW4, who is the Assistant Sub Inspector, has conducted the investigation in this case and hence, in the light of the decision reported in Subash v. State of Kerala (2008(2) KLT 1047), there is an illegality in the investigation. On going through the decision cited above, I find that the decision does not relate to any illegality in the Crl.A.1032/03 5 investigation and the said decision does not apply to the facts of this case. It is laid down in the said decision rendered by the Division Bench that irregularity in investigation is different from lack of power to initiate prosecution. Section 50 of the Abkari Act says that as soon as investigation into the offences under this Act is completed, the Abkari Officer shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with offence on the basis of a report by an officer not authorised under law. In that case the Magistrate has no power to take cognizance of an offence under the Act on the basis of a report filed by an officer other than Abkari Officer and such defect went to the root of the matter. 10. In this case, PW4 has no case that he had laid the report as contemplated under Section 50 of the Abkari Act. But, as pointed out by learned Public Prosecutor, he deposed in evidence that the report was submitted by one Sri.A.T.Balan, Sub Inspector. Therefore, this decision is not applicable to the facts of this case. PW4 is not the person, who submitted the report and hence, on the basis of the decision cited, the accused cannot claim any benefit. This argument is also Crl.A.1032/03 6 rejected. 11. Learned counsel for appellant argued that PW4 has no authority to conduct the investigation in this case, he being the Assistant Sub Inspector. He argued that PW4 prepared the scene mahazar and conducted the investigation and he has deposed that he is the Assistant Sub Inspector. 12. It is relevant to note in this context that even in the appeal memo, the appellant has not raised a ground that PW4 was acting without any authority and his investigation is vitiated. This is a point which was not challenged either before the trial court or in this appeal. This argument is built up not based on any evidence also in this case. 13. The evidence of PW4 shows that he has only stated that he is the ASI. It is not clear from the evidence whether he was holding the charge of Sub Inspector or whether he was an Additional Sub Inspector of the police station on the particular day. Normally, the officials act only in accordance with law and there is presumption in favour of the official acts that it is regularly performed under Section 114 of the Evidence Act. Learned Public Prosecutor argued that power of PW4 to conduct investigation remains unchallenged in evidence. No challenge Crl.A.1032/03 7 was made in this aspect while PW4 was in the box. It is true that on going through the evidence of PW4, it can only be seen that PW4's evidence was not challenged regarding the fact whether he has power to conduct investigation or not. 14. PW4 stated that he is the ASI. It can either be the Additional Sub Inspector or the Assistant Sub Inspector. The court cannot presume that he was the Assistant Sub Inspector, in the absence of any evidence. As already pointed out by me, in the light of the presumption in favour of the official act, in the absence of any evidence to rebut such presumption which would reveal that PW4 is an Assistant Sub Inspector and not an Additional Sub Inspector, the argument cannot be accepted. 15. Learned counsel for petitioner submitted that in the judgment of the court below it is mentioned that PW4 is an Assistant Sub Inspector. I have already pointed out that in the absence of any evidence to show whether PW4 is an Assistant Sub Inspector especially in the absence of any evidence challenge on this aspect, the observation made in the judgment that he is the Assistant Sub Inspector cannot be acted upon. This Court can act only on the basis of the evidence adduced in this case. Since there is lack of evidence to show that PW4 is an Crl.A.1032/03 8 Assistant Sub Inspector, the decision cited by defence counsel in Deepamol v. State of Kerala (2007(4) KLT 173) will not apply to the facts of this case. 16. No other argument was advanced to challenge the conviction and sentence and hence, the conviction can only be confirmed. Learned counsel for appellant argued that the sentence is highly excessive. It is submitted that the appellant is a mental patient. PW1 has given evidence that the accused is a mental patient. But, on going through the evidence of PW1, there is no such evidence that the petitioner is a mental patient. He only submitted that he did not know whether he is a mental patient. No evidence is adduced to show that he was a mental patient. He has not taken up any defence under Section 84 IPC. 17. However, PW3 has given evidence that PW3 is a mental patient and that he is taking medicines for the illness. He is an independent witness, who is an attester to Exhibit P1 mahazar. The accused has also a definite case that he is a mental patient while questioned under Section 313 Cr.P.C, though he has not raised a defence under Section 84 IPC. The arrack involved in this case is 5 litres and the sentence Crl.A.1032/03 9 prescribed under Section 55(a) is for a term of 10 years and with fine which may extend to Rs.1,00,000/-. The accused has also a case that this is a false case which is foisted out of enmity, since he sent letters to the Inspector General of Police against the police, which fact is not denied. But, accused could not probabalise that this is a false case. On hearing both sides and considering the above facts, I find that sentence can be reduced. Hence, the following order is passed: (i) Conviction passed against the appellant is confirmed. (ii) Sentence is reduced and the petitioner is sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default to undergo simple imprisonment for a period of six months in supersession of the sentence passed. Criminal Appeal is partly allowed. Sd/- K.HEMA, JUDGE vgs. /True copy/ P.S to Judge Crl.A.1032/03 10 , J. ------------------------------ Crl.A.NO.1032 of 2003 ------------------------------ JUDGMENT Crl.A.1032/03 11 6.7.2009 K.HEMA, JUDGE ma Crl.A.1032/03 12 Crl.A.1032/03 13