IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 CRL.A.No. 1176 of 2003() ------------------------ SC 268/2000 OF ADDL. SESSIONS COURT (ADHOC) I, KOLLAM APPELLANT(S): 1ST ACCUSED: -------------------------- LISSY, D/O. SARASSAMMA, LIJI BHAVAN, KAVADI KONAM, KOTTACKERM CHERY, PARIPPALLY VILLAGE, ACTUALLY RESIDING AT MOOLEKUDY VEEDU OF DO. AND DO. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENT(S): COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI S. JAYASURYA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2009, THE COURT ON 27/07/2009 DELIVERED THE FOLLOWING: P.Q. BARKATH ALI, J. -------------------------------------- Crl. A. No. 1176 of 2003 -------------------------------------- Dated: JULY 27, 2009 JUDGMENT The challenge in this appeal by the 1st accused is to the judgment of the Additional Sessions Court (Adhoc I), Kollam, in SC No.268/2000 dated July 14, 2003, convicting the appellant under sec.55(a) and (b) of the Abkari Act and sentencing her to undergo rigorous imprisonment for five years and to pay a fine of Rs.1 lakh, in default to undergo simple imprisonment for a further period of one year. 2. The case of the prosecution as shaped in evidence before the lower court in brief is that on December 9, 1997 at about 6.30 a.m. the appellant/1st accused and the second accused were found distilling arrack using wash and implements and also found to be in possession of five litres of arrack for sale in an unnumbered house named “Liji Bhavan” at Kalluvathukkal Panchayat and that thereby committed an offence punishable under sec.55(a) and (b) of the Abkari Act. According to the prosecution, the appellant who was the 1st accused was arrested Crl. A. No. 1176 of 2003 2 on the spot and the 2nd accused ran away from the place of occurrence. 3. The committal court, Judicial First Class Magistrate Court, Paravur, took cognizance of the case as CP 8/198 and committed the case to the Sessions Court, Kollam, from where it was made over to the Assistant Sessions Court, Kollam. Later it was withdrawn and made over to the trial court for trial and disposal. On appearance before the lower court the appellant and the 2nd accused pleaded not guilty to a charge under sec.55 (a) and (b) of the Abkari Act. Pws.1 to 6 were examined, Exts.P1 to P4 were marked and M.Os.1 to 7 were produced by the prosecution before the lower court. When questioned under sec.313 Cr.P.C. by the lower court, the accused persons denied having committed any offence. No defence evidence was adduced. The lower court on an appreciation of evidence found the 2nd accused not guilty of the offence alleged against him and acquitted him under sec.256(1) Cr.P.C., but found the appellant guilty of the offence punishable under sec.55(a) and (b) of the Abkari Act and convicted and sentenced her as aforesaid. The 1st accused has come up in appeal challenging her conviction and sentence. Crl. A. No. 1176 of 2003 3 4. Arguing the appeal Sri.Bechu Kurian Thomas, learned counsel for the appellant, submitted that the Sessions Court has disbelieved the evidence of Pws.1 and 3, independent witnesses, regarding the involvement of the 2nd accused, that there is no search memo or search list and that therefore the lower court should have disbelieved the evidence of Pws.1 to 4 regarding the arrest of the 1st accused from the place of occurrence. 5. The learned Public Prosecutor Sri.S.Jayasurya, appearing for the prosecution, would say that the 1st accused was arrested from the spot and that therefore the lower court is right in finding her guilty and convicting her. 6. The following points arise for consideration:- 1. Whether the finding of the lower court that the prosecution succeeded in proving that the appellant was found in possession of five liters of arrack and implements for distilling arrack on December 9, 1997 at about 6.30 a.m. in her house named 'Liji Bhavan' at Kalluvathukkal can be sustained? 2. Whether the conviction and sentence of the appellant by the lower court can be sustained? Points 1 and 2 7. It is the admitted case that the appellant has filed a complaint against P.Ws.1 and 3, the independent witnesses in Crl. A. No. 1176 of 2003 4 this case, before the police and the same is pending. Therefore the lower court is not justified in believing their evidence regarding the arrest of the 1st accused and seizure of the articles. 8. But Pws.4 and 5, the official witnesses, have clearly supported the case of the prosecution. It is true that they did not produce any search memo or search list in respect of the incident. But that itself is not a ground for rejecting their evidence. It is settled law and is held in Girja Prasad v. State of M.P. {2007 (4) KLT 99 (SC)} that the evidence of official witnesses can be believed if the same is found reliable and trust worthy. I have gone through the evidence of Pws.4 and 5. They gave a consistent version regarding the search and seizure of the contraband article and about the arrest of the 1st accused from the spot. No serious discrepancies were brought out during their cross-examination to discredit their evidence. It was not even suggested during the cross-examination that they have any enmity or prior acquaintance with the 1st accused. I find their evidence credible and trustworthy. 9. Citing the decisions in Dominic v. State of Kerala (1989 (1) KLT 601) and in Ramachandran Nair v. State {1990(1) KLT Crl. A. No. 1176 of 2003 5 44)} Sri Bechu Kurian Thomas, learned counsel for the appellant, argued that sec.31 of the Abkari Act mandates preparation of search memo before conducting a search which is absent in this case and that there is serious violation of the provisions of sec.31 of the Abkari Act in conducting the search in not calling two independent witnesses to witness the search and that therefore benefit of doubt should be given to the appellant and that she may be acquitted. I am unable to agree. In the above cited decisions itself it has been held that mere non-compliance of the procedural formalities in effecting the search will not vitiate the search if there is other evidence to substantiate the charge. Further, Pw.5 testified that no other witnesses were available except Pws.1 and 3 in that locality. In the present case I have chosen to believe the evidence of Pws.4 and 5 regarding the search and seizure. That being so, the lower court is justified in coming to the conclusion that the evidence of Pws.4 and 5 can be believed and can be acted upon and that the above version of non-compliance of procedural formalities regarding search have not in any way affected the credibility of the witnesses Pws.4 and 5. 10. Next, the learned counsel for the appellant Sri Bechu Crl. A. No. 1176 of 2003 6 Kurian Thomas, argued that there is serious delay in producing the seized articles before court and sending the samples for analysis which casts serious doubt regarding the truth of the version of Pws.4 and 5 regarding the search and seizure. There is no force in the above contention. There was a search list in court records dated December 9, 1997 which was produced before the trial court on March 24, 1998. Ext.P4 thondi list dated December 9, 1997 is seen received in the lower court on January 8, 1998. Ext.P2 certified copy of chemical analyst's report shows that the samples were despatched from court on June 10, 1998. The Chemical Examiner as PW.2 testified that the seals of the samples were intact. Further, the samples were sent from the court. Therefore the question of samples being tampered with or damaged does not arise in this case. Therefore, in my view, no prejudice is caused to the accused because of the above said delay in producing the samples in court and sending them for chemical analysis. 11. The evidence of Pws.4 and 5 were sought to be discredited on the ground that no evidence is adduced by the prosecution to show that accused 1 and 2 are wife and husband and “Liji Bhavan” from where the 1st accused was arrested Crl. A. No. 1176 of 2003 7 belongs to them. The appellant produced her ration card and voter's identity card to show that she is residing with her mother in another house. The appellant has no case that she was arrested from some other place. The arrest of the appellant and seizure of Mos.1 to 7 from that house is proved beyond doubt by the evidence of Pws.4 and 5 and to some extent by Pws.1 and 3. The appellant has no case that Pws.1 and 3 planted Mos.1 to 7 in that house and trapped her. Therefore, in my view, the fact that the relationship between accused 1 and 2 was not proved and that no evidence is adduced to show that the house “Liji Bhavan” belongs to the accused persons is not a ground for doubting the veracity of the evidence of Pws.4 and 5. 12. For all these reasons I hold that the lower court is justified in believing the evidence of Pws.4 and 5 and coming to the conclusion that the prosecution has succeeded in proving that on December 9, 1997 at about 6.30 a.m. the appellant was found to be distilling arrack using wash and implements Mos.1 to 7 in the unnumbered house “Liji Bhavan” and was also in possession of five liters of arrack and in convicting her under sec.55(a) and 55(b) of the Abkari Act. Therefore I confirm her conviction thereunder by the lower court. Crl. A. No. 1176 of 2003 8 13. As regards the sentence, the lower court sentenced her to undergo rigorous imprisonment for five years and to pay a fine of Rs.1 lakh, in default to undergo simple imprisonment for a further period of one year. As the appellant being a lady, I feel that the substantive sentence can be reduced to the period of remand undergone by her i.e. from 9.12.1997 to 6.1.1998. The sentence of fine being the statutory minimum has to be maintained. In the result the appeal is dismissed. The conviction of the appellant by the lower court under sec.55(a) and 55(b) of the Abkari Act is confirmed and the sentence is modified to the effect that the substantive sentence is reduced to the period of remand undergone by her i.e. from 9.12.1997 to 6.1.1998. The sentence of fine being the statutory minimum is maintained. P.Q. BARKATH ALI, JUDGE mt/-