IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 11TH NOVEMBER 2008 / 20TH KARTHIKA 1930 CRL.A.No. 646 of 2008() ----------------------- SC.198/2007 OF THE ADDL. SESSIONS COURT, (ABKARI CASES) KOTTARAKKARA .................... APPELLANT(S): -------------- RAVEENDRAN, C.NO.2214, CENTRAL PRISON, TRIVANDRUM. BY ADV. M.P.MADHAVANKUTTY(STATE BRIEF) RESPONDENT(S): --------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 11/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.A.No. 646 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of November, 2008 JUDGMENT In this appeal the appellant/accused assails the verdict of guilty, conviction and sentence imposed on him by the learned Additional Sessions Judge (Abkari Cases), Kottarakkara in a prosecution under Section 8 of the Kerala Abkari Act. He faces a sentence of R.I. For a period of two years and to pay a fine of Rs. 1 lakh and in default of payment of fine to undergo R.I. For a period of six more months. Set off was allowed. 2. The crux of the allegations against the appellant is that he was found to keep in his possession and transport 5 litres of arrack in MO1 can when he was intercepted by the Excise party headed by PW1 at 11.30 a.m. On 19.8.2006. The seizure was effected under Ext.P1 seizure mahazar, which is attested by Pws. 2 and 3, alleged witnesses to the seizure. Investigation was conducted by PW4 and final report was filed. Cognizance was taken by the learned Magistrate. The case was committed to the Court of Sessions. Crl.A.No. 646 of 2008 2 3. The accused denied the charges levelled against him and thereupon the prosecution examined Pws. 1 to 4 and proved Exts.P1 to P8. MO1 was also marked. 4. PW1, as stated earlier, is the detecting official, who effected the seizure under Ext.P1 seizure mahazar. Pws. 2 and 3 are the alleged attestors to the seizure mahazar. They admitted their signatures in Ext.P1, but did not support the prosecution case about the alleged seizure. They were declared hostile and were cross examianed. PW4 is the Excise Inspector, who had conducted the investigation and had filed the final report/complaint. 5. Ext.P1, as stated earlier, is the seizure mahazar, under which the contraband article in MO1 can was seized by PW1. Exts.P2 and P3 are the arrest memo and arrest notice. Ext.P4 is the crime and occurrence report prepared by PW1. Ext.P5 is the property list under which the contraband article along with a sample drawn at the scene of the crime was submitted to the court by PW1. Ext.P6 is the forwarding letter to the Chemical Examiner submitted by PW1 through court. Ext.P7 report was submitted by the Investigating Officer after Crl.A.No. 646 of 2008 3 ascertaining the name and details of the accused. Ext.P8 is the chemical examiner's report. 6. After the close of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. He took up a defence of total denial. According to him, no contraband article was seized from his possession as alleged by the prosecution. According to him, PW1 had gone to the house of the appellant wrongly assuming that it was the house of one Ravindran. There was impropriety committed by the Excise officials and the appellant had submitted a private complaint. Because of that animosity the appellant was caught from his house and this false proceedings has been initiated against the appellant, it was contended. No defence evidence whatsoever was adduced. 7. The learned Sessions Judge, on an anxious consideration of all the relevant inputs, chose to place reliance on the oral evidence of PW1, which is duly supported by the contents of the contemporaneous documents, including Ext.P1 seizure mahazar, the signatures in which are admitted by Pws. 2 and 3, though they turned hostile to the prosecution and did not speak about the alleged seizure proper. Crl.A.No. 646 of 2008 4 Accordingly the learned Sessions Judge proceeded to pass the impugned judgment. 8. This appeal has been preferred through the prison authorities and the services of a State Brief counsel was made available to the appellant. The learned State Brief counsel Sri. M.P. Madhavankutty advanced his arguments. The learned Prosecutor has also been heard. The learned counsel for the appellant assails the impugned judgment on the following grounds. 1) The court below erred grossly in accepting and acting upon the interested version of PW1. 2) The learned Judge ought to have held that there was no satisfactory indications to show that Ext.P8 chemical examiner's report was submitted after analysis of the contents of MO1. 3) The sentence imposed is at any rate excessive. 9. Coming to the first ground of challenge it is true that there is only the oral evidence of PW1 to prove the case of the prosecution about the alleged seizure. The counsel contends that the oral evidence of PW1 being interested ought to have been scrutinised with very great Crl.A.No. 646 of 2008 5 care, caution and suspicion. The counsel relies on the circumstance that Pws. 2 and 3, alleged independent witnesses, have turned hostile completely. Counsel relies on the circumstance that no other member of the Excise party which allegedly detected the offence has been examined as a witness. The counsel argues that the omission to examine atleast another official witness to support the prosecution case is of crucial significance. 10. I am unable to accept the said contention. PW1 is a public official and in such capacity he is duty bound to detect offences and bring offenders to book. This sublime public duty which every public official is expected to have cannot certainly relegate such official to the status of an interested witness, whose testimony will be viewed with reservation and caution by a court and corroboration will be insisted as a rule of prudence for such testimony. Of course, during the cross examination of PW1 there is an attempt to suggest that PW1 has an animus against the appellant. But the said suggestion remains in the realm of an unsubstantiated theory suggested to the witness with nothing tangible to support that theory. Though it is contended that Crl.A.No. 646 of 2008 6 PW1 had an axe to grind against the appellant, there is nothing indicated in evidence to prove such prior animosity. The appellant goes to the extent of suggesting that there is a private complaint lodged by him against PW1. But the suggestion is denied and there is no specific material to even probabilise that suggestion. Even the number of the private complaint is not seen mentioned. 11. Ext.P1 seizure mahazar is a contemporaneous document, the contents of which support the oral evidence of PW1. The crime and occurrence report proved by the prosecution as Ext.P4 does also broadly support the oral evidence of PW1. It will not be inapposite in this context to note that Pws. 2 and 3, though they turned hostile to the prosecution, had admitted their signatures in Ext. P1. No satisfactory explanation is offered as to how their signatures happened to be available in Ext.P1. Hostility of Pws. 2 and 3 cannot certainly deliver any advantage to the appellant. 12. Having considered all the relevant circumstances, I am of the opinion that the oral evidence of PW1 does not inherently arouse any suspicion or reservation. It is not at all shown that PW1 has any Crl.A.No. 646 of 2008 7 animus to justify the criticism that he is raising totally false allegations against the appellant. I am, in these circumstances, of the opinion that the oral evidence of PW1, who had stood the test of cross examination reasonably well and whose evidence is supported by the contents of Ext.P1 as well as Ext.P4 deserves to be accepted. The admission of the signatures by Pws. 2 and 3 does also go a long way to offer assurance to this court for the oral evidence of PW1. The first ground of challenge raised cannot, in these circumstances, be accepted. 13. The second ground of challenge relates to the efficacy of the procedure of analysis and the forwarding of the sample to the chemical examiner. The chemical examiner's report, Ext.P8, shows that he had examined a sample, which was forwarded to him under a covering letter issued by the Magistrate dt. 11.9.2006. That covering letter is not introduced in evidence. Ext.P8 shows that TR 341/2006 is the reference number and that is the number assigned to the properties in this case. This is evident from ext.P5 property list as also Ext.P6 requisition letter. Though the covering letter addressed by the learned Magistrate is not produced, I am satisfied that the linkage between the Crl.A.No. 646 of 2008 8 sample examined by the expert and the sample of the contraband article produced in court is thus clearly established by Ext.P5 property list, Ext.P6 requisition letter and Ext.P8 report of the chemical examiner, all of which show that the property in TR 341/2006 was forwarded to and examined by the expert. 14. The learned counsel then contends that in any view of the matter, the sampling has not been proved properly. It is not proved that 200 ml. of arrack, which was available in the property produced as item No.2 was properly sampled. Counsel relies on the decision in Sasidharan v. State of Kerala (2007 (1) KLT 720), in which it has been held that the linkage has to be established and non-examination of the court clerk who took the sample and forwarded the same to the chemical examiner is fatal to the prosecution case. 15. I am unable to agree. In the instant case the oral evidence of PW1 shows clearly that sample of the contraband liquor was drawn at the scene of the crime itself. PW1 speaks about it. Ext.P1 seizure mahazar shows the same and the property list, Ext.P5 shows that what is produced before court included this sample bottle in which the Crl.A.No. 646 of 2008 9 sample of contraband article was taken and produced before court. The requisition letter, Ext.P6, also shows that it is that sample bottle which was forwarded to the expert. In Sasidharan (supra) it was a case of sample being taken from the court by the official of the court and it was total lack of evidence on such drawing of sample in court that persuaded the learned Judge to discard the evidence of the chemical examiner. The principle in Sasidharan (supra) cannot in these circumstances help this court to concede any benefit to the appellant. 16. The learned counsel for the appellant then submits that in Ext.P6 requisition letter no sample seal is affixed. Ext.P6 copy of the requisition letter has been perused by me. It is true that it does not contain the specimen impression of the seal. But this circumstance by itself cannot militate against the assertion in Ext.P8 that the sample bottle which was received had a seal and the said seal tallied with the sample seal provided. Evidently in the letter under which the sample was forwarded sample seal was affixed and that seal had tallied with the seal on the bottle which was forwarded for analysis. There was evident omission to affix the specimen impression of the sample seal in the copy. That circumstance also Crl.A.No. 646 of 2008 10 does not generate any reasonable doubt in my mind about the authenticity of the sample that was forwarded from court to the chemical examiner. 17. No other contentions are raised on merits. I am, in these circumstances, satisfied that the verdict of guilty and conviction do not warrant interference. The challenge raised on grounds 1 and 2 is thus turned down. 18. The learned counsel for the appellant then submits that leniency may be shown on the question of sentence. The appellant is continuing in custody from the date of his arrest i.e. 19.8.2006. More than a period of two years has elapsed. The substantive sentence of imprisonment must already have been served by him. In these circumstances the appellant may not be compelled to undergo further incarceration on account of his inability to pay the fine amount. Substantive sentence and default sentence may suitably be modified atleast to ensure that the appellant is not compelled to continue in custody any longer, argues the counsel. I find merit in that contention. There is nothing to show that the appellant has any criminal Crl.A.No. 646 of 2008 11 antecedents. The quantity of the contraband liquor seized was only 5 litres. I am, in these circumstances, satisfied that leniency can be shown on the question of sentence. The sentence imposed – substantive sentence as well as default sentence – can be suitably modified. 19. In the result: a) This appeal is allowed. b) The impugned verdict of guilty and conviction of the appellant under Section 8 of the Kerala Abkari Act are upheld. c) But the sentence imposed is modified and reduced. The sentence of fine is upheld. The substantive sentence of R.I. for a period of two years and the default sentence of R.I. for six months are modified and reduced to R.I. for a period of 18 months and 3 months respectively. d) Communicate the order to the prison authorities and also to the learned Sessions Judge forthwith. If the appellant has already served the modified sentence imposed on him by this appellate judgment and his further detention is not required in connection with Crl.A.No. 646 of 2008 12 any other case, the authorities shall ensure that the petitioner is forthwith released from custody. (R. BASANT) Judge tm