IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 CRL.A.No. 229 of 2003() --------------------------------- SC.41/2000 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD ...................................................................... APPELLANT(S): ACCUSED: ------------------------------------- A.C.NARAYANAN, S/O. CORAGA KARANAVAR, CHEENADI, ADOOR. BY ADV. SRI.M.RAMESH CHANDER RESPONDENT(S): COMPLAINANT(S) AND STATE: ------------------------------------------------------------------ 1. STATION HOUSE OFFICER, ADHUR POLICE STATION. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.C.M.NAZAR, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.229 OF 2003 -------------------------- Dated this the 22nd day of June, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the conviction and sentence passed in S.C.41/2000 of the Additional Sessions Judge (Ad hoc – I) of Kasargod. It is the case of the prosecution that on 19.8.1999 at about 5.30 p.m., the accused was found in possession of 26 packets of 100 ml. Karnataka made arrack, against the provisions of the Kerala Abkari Act. He was apprehended, contraband liquor seized, arrested and prosecuted which ended in his conviction for a period of 3 years u/s.55(a) of Abkari Act and to pay a fine of Rs.1 lakh and in default, imprisonment of 6 months. It is against that decision the accused has come up in appeal. The point that arises for determination is, 1.Whether there are sufficient materials to hold that the accused has committed the guilt u/s.55(a) of the Abkari Act and in the event of conviction is the punishment CRL.A.No.229 OF 2003 2 excessive ? 2. Point No.1:- Heard the learned counsel for the appellant as well as the Public Prosecutor. The learned counsel for the appellant would submit that the evidence in the case is not sufficient to hold the accused guilty and that procedural formalities are not properly applied with. I had been taken through the evidence of Pws.1 to 4 as well as the documents exhibited in the case. PW1 is a Police Constable, who had accompanied PW4, the Sub Inspector of Police, who had detected the evidence. It is deposed by him that about 5.30 p.m., they got information regarding the sale of arrack by the accused and therefore went to his place and he was found in possession of 26 packets of Karnataka made arrack. It is deposed by him that from the contraband liquor, samples were taken in two 375 ml. bottles. The balance of 20 packets were seized and marked as M.O.1 series. In the cross examination also he would depose that the jeep was parked 100 mtrs. away from the place of incident and on reaching the place they saw the accused with the arrack. It is also deposed by him that it CRL.A.No.229 OF 2003 3 was one Constable, Mohanan, who had opened the packet for the purpose of samples. 3. PW4 is the Investigating and Detecting Officer. He had also deposed that they were able to see one person holding a bag on the north-eastern corner of a shop and it was the accused. He was apprehended and 6 packets were taken as sample in 2 bottles and the intimation regarding the arrest was given to his brother, Kunhiraman. This witness had been also cross examined and nothing has been brought out to discredit their evidence. PWs. 2 and 3, the independent witnesses, as usual had turned hostile to the prosecution. The evidence of PWs.1 and 4 is sufficient to hold that the accused was found in front of the shop with a bag containing contraband liquor and that it was taken from his possession, sampled and sealed. An attempt was made to argue that since there is no documents to prove that the said shop was of the accused and so the case will not lie. It is held by the courts that when a contraband liquor is seized from the possession of a person then it does not matter whether he is the owner of the building or not. So the failure to CRL.A.No.229 OF 2003 4 establish the ownership of the building is not fatal to the prosecution in the light of the fact that the contraband liquor has been seized from the possession of the accused. 4. Now the next question to be considered is regarding the procedural formality, whether properly complied or not. It was deposed by PWs.1 and 4 that, out of the 26 packets, 6 packets were opened and it was transferred to two 375 ml. bottles ie., 300 ml. each, sampled and it was labelled. It is true that the seizure is on 19.8.99 and it has been produced only on 30.8.1999 before the Magistrate. The mere delay in production will not ipso facto establish that the procedure is not followed. Nothing is there to even suspect regarding the tampering of the sample taken and it was only one bottle that had been taken for chemical analysis and the chemical examiner has reported that the seal in the sample was intact and tallied with the sample provided. So the mere delay of 11 days has not caused any prejudice to the accused at all and there are no suspicious circumstances to indicate that the Investigating agency had a chance to tamper with the materials. Therefore the sampling CRL.A.No.229 OF 2003 5 and sealing and sending it for chemical examination are all done properly and the chemical analysis report reveals that the liquid which was examined contained 34.77% by volume of ethyl alcohol. Therefore it has to be held that the accused has committed the offence u/s.55(a) of the Abkari Act. It has also to be stated that, the evidence of Pws.1 and 4 were made to meticulous scrutiny to find out whether there is anything which is of a suspicious nature before accepting it. Their evidence does not lack and it is credible. Therefore, the conviction u/s.55(a) of Abkari Act is only to be confirmed and I do so. 5. So far as the sentence is concerned it appears to be on the higher side. The total liquid find in possession is 2.6 ltrs. and the conviction is 3 years and a fine of Rs.1 lakh, with default sentence of 6 months. Considering the age of the person and the quantum of liquor involved and other attendant circumstances including his liability to look after his family, I am inclined to reduce his sentence to 6 months of simple imprisonment, u/s.55(a) of Abkari Act with a fine of Rs.1 lakh and in default to undergo simple imprisonment of 2 months. In CRL.A.No.229 OF 2003 6 case he had deposited Rs.25,000/- as directed by this court, that can be credited to the fine and for the remaining he need undergo only 1 month further imprisonment. In the result, appeal is disposed of as follows :- 1. The finding of guilt u/s.55(a) of Abkari Act is confirmed. 2. The sentence is modified and the accused is sentenced to undergo simple imprisonment of 6 months with a fine of Rs.1 lakh and on default to undergo a further imprisonment of 2 months. 3. In case he had deposited Rs.25,000/- as directed by this court, that can be credited to the fine and for the remaining he need to undergo only 1 month further imprisonment, in case of default in balance payment of fine. He is also entitled to set off. M.N.KRISHNAN, JUDGE ami.