IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 21ST JANUARY 2008 / 1ST MAGHA 1929 CRL.A.No.1231 of 2007 (D) -------------------------------- SC.620/2001 OF ADDL. SESSIONS JUDGE, (ABKARI CASES), KOTTARAKKARA CP.223/2000 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOTTARAKKARA .................... APPELLANT: -------------- ACHANKUNJU, C.NO.1622 CENTRAL PRISON, TRIVANDRUM BY ADV. G.G.MANOJ[STATE BRIEF] RESPONDENT: ---------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.1231 of 2007 ------------------------------------------------ Dated this the 21st day of January, 2008 JUDGMENT Convict No.1622, Achankunju of Central Prison, Thiruvananthapuram has preferred this appeal from jail challenging the correctness of the conviction and sentence passed against him by the Additional Sessions Judge (Abkari Cases), Kottarakkara vide judgment dt.28/03/07 in S.C.620/01 for offence under Section 8(1) and (2) of the Abkari Act. On conviction he has been sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1 lakh and in default to undergo simple imprisonment for a further term of six months. 2. The prosecution case is that at about 5.20 p.m on 09/06/98 the appellant was found carrying three litres of arrack in a five litre black Can for sale through Kollam mukku - Maveli Mukku Panchayat road in front of the Crl. Appeal No.1231 of 2007 -2- tea shop owned by George of Shajibhavan at Mylodu which was detected by PW1 the Inspector, Exice Range, Chadayamangalam and party who effected seizure thereof and effected arrest of the appellant and registered Crime No.14/98 of Chadayamangalam Excise Range. 3. On committal of the case vide C.P. No.223/2000 by the Judicial First Class Magistrate's Court-II, Kottarakkara to the Sessions Divison, Kollam, it was numbered as S.C.620/01 and made over to the Assistant Sessions Court, Kottarakkara and later, transferred to the court of the Additional Sessions Judge (Abkari Cases), Kottarakkara. On appearance of the appellant in the court below pursuant to issuance of summons, preliminary arguments were heard; charge was framed by the court below against the appellant for offence under Section 8(1) and Crl. Appeal No.1231 of 2007 -3- (2) of the Abkari Act; was read over and explained to the appellant and he was questioned. Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted. 4. On the side of the prosecution PWs.1 and 4 were examined; Exts.P1 to P6 were got marked and MO1 was 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. However, he did not adduce any evidence in defence. The court below heard arguments of both sides and considered the case in the light of the evidence adduced as above, found that the appellant has committed offence punishable under Section 8(1) and 8(2) of the Abkari Act; convicted him thereunder Crl. Appeal No.1231 of 2007 -4- and sentenced him as already stated. Hence, this appeal by the aggrieved appellant. 5. Advocate Sri.G.G.Manoj was appointed on State Brief to argue the appeal on behalf of the appellant who has preferred this appeal from jail as he had not engaged any other lawyer of his choice. Arguments of counsel on State Brief and the Public Prosecutor are heard. 6. The contentions that are advanced before me by the learned counsel for the appellant are that there is no convincing evidence to bring home the guilt in the appellant and further the delay of seventeen days in submission of the MO1 and the sample before court cause a cloud on the truth of the prosecution case and that for all those reasons, the appellant deserves an acquittal and that the appeal be therefore, allowed and the appellant acquitted in reversal of the Crl. Appeal No.1231 of 2007 -5- judgment impugned. 7. PW1 is the detecting officer. He was excise inspector, Chadayamangalam on 09/06/98, the date of occurrence. At 5.00 p.m. on that day, he along with excise party was proceeding from Kollam mukku to Maveli mukku along the panchayath road and thereupon, PW1 and the excise party accompanying him saw the appellant at a distance of 25 feet holding in his right hand a black Can of five litres capacity. He attempted to take to heels on seeing the excise party. Consequently, he was intercepted and questioned and on examination of the can held by him it was found that it contained three litres of arrack. Consequently, it was confiscated preparing Ext.P3 mahazar in that behalf and the appellant was arrested preparing Ext.P1 arrest memo in that behalf and intimation of arrest was also given to the wife of the appellant vide Ext.P2. 300 ml. of Crl. Appeal No.1231 of 2007 -6- illicit arrack from the arrack in the can was taken separately as sample in a 375 ml. bottle and that was sealed and labeled. Similarly, the Can also was sealed and labeled and the label was signed both by PW1 and witnesses. Ext.P3 mahazar was also attested by PW4. On the basis of the seizure effected, crime was registered against the appellant under Section 55(a) of the Abkari Act registering Ext.P4 occurrence report. Ext.P5 property list was also prepared. According to PW1, the property list along with the 'thondi' articles were returned by the Magistrate and was being produced subsequently preparing Ext.P5 property list on 26/06/1998 as on the production along with the accused it was ordered to be kept in the excise office for paucity of space in the Magistrate's Court. PW1 has deposed that till 26/06/98, the date on which it was produced before court along Crl. Appeal No.1231 of 2007 -7- with Ext.P5 property list it was being kept in his safe custody. Ext.P6 is the report of chemical analysis obtained from the Chemical Analyst forwarding the samples for chemical examination. 8. To assail the propriety of arrest, a question was put to PW1 whether the appellant and his wife were not at loggerheads, but there is no suggestion even, that they were residing separately. However, there is no evidence in that matter and there is no illegality in the arrest. Nothing has been brought out in cross examination of PW1 to discredit his testimony. PW2 was the Preventive Officer on the date of occurrence in Chadayamangalam Excise office. He has substantially corroborated the testimony of PW1 on all material particulars as regards the detection and seizure of MO1 from the possession of the appellant. To the specific Crl. Appeal No.1231 of 2007 -8- question asked to PW2 as to whether he is unaware of the whereabouts of the samples till it was produced in court, he has stated that it was being kept in the excise office. 9. PW3 is the successor in office of PW1 and he conducted further investigation in the case consequent on transfer of PW1. PW4 is the attestor to Ext.P3 mahazar and he turned hostile attempting to disown his signature as attestor in Ext.P3. It has been brought out in cross examination by the Public Prosecutor that he signed as attestor in Ext.P3 on the request of the excise officials though he has stated that the seizure had not been witnessed by him. All the same, he has admitted that he is aware of what is written in Ext.P3 on the information furnished by the excise officials. All Exts.P1 to P4 are seen produced before court on the very next day of the occurrence namely on 10/06/98. But list of material Crl. Appeal No.1231 of 2007 -9- objects is seen produced only on 26/06/98 after 17 days of the occurrence. Though there is some delay in production of the material objects and the explanation offered by PW1 that due to paucity of space in Magistrate's Court he was ordered to keep the material objects in the excise office and produce it later, his version does not stand established as Ext.P5 proved by PW1 himself is dated 26/06/98 and is received also by the Magistrate on 26/06/98 and no further endorsement are available thereon to show that it had been presented in the first instance on 10/06/98 and was returned to be kept at the excise office. However, the mere fact that production of the material objects before court is delayed by seventeen days is no ground for acquittal of the appellant/accused as no prejudice is shown to have been caused to the appellant by reason of such delay and Crl. Appeal No.1231 of 2007 -10- there is no suggestion even that on account of the delay any tampering to the material objects or the sample had been effected. Thus, there is no merit at all in this Criminal Appeal. The sentence awarded by the court below is also only moderate and legal. Hence, no interference is called for in this appeal challenging the conviction and sentence passed against the appellant by the courts below. This appeal is hence, devoid of any merit. 10. In the result, I dismiss this Criminal Appeal. Communicate a copy of this judgment to the appellant through the Superintendent of the Central Prison concerned. K.P.BALACHANDRAN, JUDGE kns/-