IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 30TH JULY 2008 / 8TH SRAVANA 1930 Crl.Rev.Pet.No. 2189 of 2008() ------------------------------ Crl.Appeal NO..33/2000 of ADDL.SESSIONS JUDGE(AD HOC -II) KASARAGOD SC.89/1998 of ASSISTANT SESSIONS COURT, KASARAGOD .................... REVISION PETITIONER/APPELLANT/ACCUSED ----------------------------------------------- P. GANESH, S/O, SEENA POOJARY, RESIDING NEAR A.R. CAMP, KARAKATTA, KASARAGOD DT. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS: COMPLAINANT AND STATE ---------------------------------- 1. SUB INSPECTOR OF POLICE, KASARAGOD. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI K.C.SANTHOSH KUMAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = = = = = = = CRL.REV. PET. NO. 2189 OF 2008 = = = = = = = = = = = = = = = = = = = Dated this the 30th day of July, 2008 O R D E R ----------- Revision petitioner, who was the accused in S.C. No.89 of 1998 on the file of the Assistant Sessions Judge, Kasargod, for an offence punishable under Section 55(a) of the Abkari Act (for short “the Act”), challenges the conviction entered and the sentence passed against him concurrently by the courts below. 2. The case of the prosecution can be summarised as follows: On 6.9.1997 at about 6.25 p.m. the accused was found in possession of 5 litres of arrack from a place behind the residential house of one Janardanan at Asok Nagar in Kasargod Village. The accused has thereby committed an offence punishable under Section 55(a) of the Act. 3. P.W. 1 is the Circle Inspector of Police, Kasargod, who detected the offence. He got credible secret information over telephone at about 6.15 p.m. and thereupon he proceeded to the spot and found the accused standing at the CRL. R.P. NO.2189 OF 2008 -: 2 :- spot with M.O. 1 jerry can having a capacity of 10 litres with 5 litres of some liquid and M.O.2 glass tumbler. The contents of M.O.1 Jerry can was tested by smell and taste by P.W.1 who reasonably suspected that it was arrack. Two samples of 375 ml. each of arrack were drawn in two bottles and the bottles were packed and sealed. The remaining contraband article in M.O.1 jerry can was also packed and sealed. The accused was arrested from the spot and the contraband liquor together with the samples were seized under Exhibit P1 mahazar to which P.Ws.2 and 3 affixed their signatures as independent witnesses. During the course of investigation, the Sub Inspector of Police, Kasargod, filed Exhibit P6 forwarding note for despatching the sample to the chemical examiner for analysis. One of the sample bottles was despatched by the committal court (Judicial First Class Magistrate, Kasargod) on 22.9.1997 as per a covering letter. Exhibit P7 report of the chemical examiner shows that the sample bottle received was with the seal in tact and its contents was found to contain 85.41% by volume of Ethyl Alcohol. 4. The learned Sessions Judge found the Revision CRL. R.P. NO.2189 OF 2008 -: 3 :- petitioner guilty of the offences and sentenced him to undergo Rigorous Imprisonment for three years and to pay a fine of Rs.1,00,000/- and on default to pay fine, to undergo Rigorous Imprisonment for one year. On appeal before the Sessions Court, Kasargod, as Crl. Appeal No.33 of 2000, the learned Sessions Judge modified the sentence to Simple Imprisonment for one year and to pay a fine of Rs.1,00,000/- and on default to pay fine, to undergo Simple Imprisonment for three months. It is the said judgment which is assailed in this Revision. 5. I heard Advocate Shri T.G.Rajendran, the learned counsel for the revision petitioner and Shri K.C. Santhosh Kumar, the learned Public Prosecutor. 6. Learned counsel for the revision petitioner made the following submissions before me in support of the revision petitioner:- It is a case in which both the independent witnesses, examined as P.Ws.2 and 3 and the neighbour who allegedly witnessed the seizure and examined as P.W.4, turned hostile to the prosecution. Even though Exhibit P6 forwarding note is dated 6.9.1997, it reached the court only along with the CRL. R.P. NO.2189 OF 2008 -: 4 :- properties on 17.9.1997. Such belated production of properties before the court is fatal. Going by Exhibit P6 forwarding note the sample bottle was entrusted with one Kunhiraman, PC 242 of Kasargod Police Station, on 22.9.1997. But Exhibit P7 shows that the sample bottle reached the chemical examiner only on 27.11.1997 and it was produced by PC 242 and 960 of Kasargod Police Station. Absolutely no explanation is forthcoming for the inordinate delay in the arrival of the sample bottle in the chemical examiner's laboratory at Kozhikode. It takes only 5 hours by bus to reach Kozhikode from Kasargod from where the sample bottle was despatched on 22.9.1997. The strength of the liquid in the bottle as reported in Exhibit P7 is 85.41% by volume of Ethyl Alcohol, in which case the liquid cannot be arrack, but rectified spirit or some other liquor. The conviction entered and sentence imposed on the revision petitioner overlooking these vital aspects cannot be sustained. 7. I cannot agree with the above submissions. The credible testimony of P.W.1 shows that the accused was found carrying M.O.1 jerry can having a capacity of 10 litres CRL. R.P. NO.2189 OF 2008 -: 5 :- containing 5 litres of liquid. P.W.1, after questioning the accused, tested the liquid by smell and taste and found that it was arrack. He thereupon drew two samples each of 375 ml. in two bottles. After packing and sealing M.O.1 jerry can containing the remaining liquor he arrested the accused and seized M.O.1 and the sample bottles under Exhibit P1 mahazar on 6.9.1997. Accused as well as the properties were taken to the Kasargod Police Station from where he registered a case as Crime No.509 of 1997. The property list available in the records of the Committal Magistrate shows that the properties reached the court on 10.9.1997. No doubt, M.O.1 jerry can and M.O.2 glass tumbler were returned to the officer for safe custody in the Police Station to be produced before court as and when required. They were produced again at the time of trial at the requisition of the committal court. Sample bottles at the time of their production on 10.9.1997 before the committal Magistrate were in the sealed condition. On receipt of Exhibit P6 forwarding note on 17.9.1997 the committal court forwarded one of the two sample bottles to the chemical examiner's laboratory at Kozhikode as per a CRL. R.P. NO.2189 OF 2008 -: 6 :- covering letter on 22.9.1997. No doubt, Exhibit P6 shows that the sample bottle was entrusted with one Kunhiraman, PC 242 of Kasargod Police Station. It was the very same PC 242 along with PC 960 who produced the sample bottle before the chemical examiner on 27.11.1997. It is true that there is a long delay in taking the sample bottle from the court of the committal Magistrate to the chemical examiner's laboratory. But the sample bottle was received by the chemical examiner with the seal in tact as is discernible from Exhibit P7 report. Under these circumstances merely because PC 242 was accompanied by PC 960, who is another Constable of the Kasargod Police Station, it cannot be assumed that the property was not carried in a tamper proof state from Kasargod to Kozhikode. 8. It is true that the strength of the contents in the sample bottle forwarded to chemical examiner was found to be 85.41% by volume of Ethyl Alcohol. But the charge as well as the conviction are under Section 55(a) of the Act and not under Section 8(2) of the Act. Apart from the fact that it cannot be assumed that a potable liquor containing 85.41% CRL. R.P. NO.2189 OF 2008 -: 7 :- by volume of Ethyl Alcohol is not arrack, even if it is taken as rectified spirit, the penal provision applicable is one under Section 55(a) of the Act. Hence I do not find any infirmity in the conviction entered against the petitioner and the same is only to be confirmed and I do so. 9. The sentence imposed on the revision petitioner also cannot be said to be harsh or disproportionately excessive. If at all the learned Sessions Judge has erred, it was on the side of leniency in reducing the sentence to Simple Imprisonment for one year and the default sentence of three months. In the result, this Revision Petition is dismissed in limine confirming the conviction entered and the sentence imposed by the learned Sessions Judge, Kasargod. V. RAMKUMAR, JUDGE. vsv