IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 25TH JANUARY 2008 / 5TH MAGHA 1929 CRL.A.No. 1185 of 2007() ------------------------ SC.389/2005 of ADDL. SESSIONS COURT (ADHOC)-II, KALPETTA CP.58/2006 of JUDL.MAGISTRATE OF FIRST CLASS, SULTHANBATHERY .................... APPELLANT: ----------- GOPAN @ GOPAKUMAR C.NO.3768, CENTRAL JAIL, KANNUR BY ADV. .C.T.JESTIN[STATE BRIEF] RESPONDENTS: ------------- SUB INSPECTOR AMBALAVAYAL POLICE STATION CR.NO.168/04 BY ADV. PUBLIC PROSECUTOR, SRI P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Crl.Appeal No. 1185 of 2007 (C) ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 25th day of January, 2008 J U D G M E N T Convict No.3768 Gopan alias Gopakumar has preferred this appeal from Central Prison Kannur assailing the conviction and sentence passed against him by the Additional Sessions Judge, (Ad hoc-II), Kalpetta, vide judgment, dated 23/05/2007, in S.C.No.389/2005 for offence under Section 58 of the Abkari Act. On conviction, the court below sentenced him to undergo rigorous imprisonment for a term of two years and also to pay a fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for a term of six months with right of set off. 2. The prosecution case is that at about 5 p.m on 20/09/2004, the appellant was found in possession of about four litres of illicit arrack intended for sale in the banana garden on the north of his residential house in Valassery colony in Thomattuchal amsom. 3. Crime No.168/2004 of Ambalavayal Police Station was registered in that behalf and was investigated by the police and final report was laid before the Judicial First Class Magistrate Crl.A.No.1185 of 2007 (C) -: 2 :- Court-I, Sultan Bathery, against the appellant. And vide proceedings in C.P.No.82/2005, the learned Magistrate committed the case to the Sessions Division, Wayanad, where it was taken on file as S.C.No.389/2005 and was made over to the Additional Sessions Court (Ad hoc-II), for trial and disposal. 4. Before the Sessions Court as the appellant had not engaged any lawyer of his choice, a counsel was appointed for him under the legal aid scheme. Thereafter, preliminary arguments in the case were heard, charge was framed by the court below against the appellant for offence under Section 58 of the Abkari Act was read over and explained to him and he was questioned. Thereupon he pleaded not guilty and consequently a trial of the case was conducted. 5. Prosecution examined PWs.1 to 7, got marked Exts.P1 to P7 and got identified MO.1. 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. According to him, he was being called to the police station and was being arrested telling him that it is known that he is engaged in sale of arrack. However, he did not adduce any Crl.A.No.1185 of 2007 (C) -: 3 :- evidence in defence. The court below considered the case in the light of the evidence adduced as aforesaid, found the appellant guilty of the offence punishable under Section 58 of the Abkari Act, convicted him thereunder and sentenced him as already stated. Hence, this appeal by the aggrieved convict. 6. As the appellant had not engaged any lawyer of his choice, Adv.C.T.Jestin was appointed as State Brief to argue the appeal on behalf of the appellant. Arguments of counsel on State Brief as well as the Public Prosecutor were heard. 7. It is vehemently contended before me on behalf of the appellant by the learned counsel appointed on State Brief that there is delay of six days in production of the material objects before court and therefore the possibility of the material objects having been tampered with cannot be excluded and further that the witnesses are not on agreement with the place from where seizure was effected and that would show that the alleged detection and seizure are not genuine and that the case is a foisted one. 8. PW.3 is the Sub Inspector of Ambalavayal Police Station. He has deposed that at about 4 p.m on 20/09/2004, he along with police party accompanying him were conducting patrolling in Crl.A.No.1185 of 2007 (C) -: 4 :- places like Thommattuchal, Valassery etc and in the course of that he received information that Gopan (appellant) is conducting sale of illicit arrack in the premises of his house and therefore, himself and police party reached there at 5 p.m and he saw the appellant in the banana garden on the north of his house, standing there holding a jerry can. According to him, on seeing them the appellant attempted to take to his heels and he was intercepted by them and the contents in the can was examined and it was found that the 5 litres can contained illicit arrack of about 4 litres. Consequently, he effected arrest of the appellant preparing Ext.P1 arrest memo; took samples from the arrack in the can in two bottles of 375 ml capacity for chemical examination and affixed labels signed by himself, the appellant and the witnesses thereon and effected seizure under Ext.P2 seizure mahazar attested by himself and witnesses. According to him, on reaching back the police station, he registered the crime drawing up Ext.P3 F.I.R and forwarded the material objects to court including them in Ext.P4 property list. He asserted that till it was so forwarded to the court, the material objects were in his custody. He also forwarded Ext.P5 forwarding note to have the material objects forwarded for chemical examination. The report obtained from the chemical Crl.A.No.1185 of 2007 (C) -: 5 :- analyst is Ext.P6. He has identified MO.1 as the can with illicit arrack which was seized by him under Ext.P2 seizure mahazar. In cross-examination he has asserted that the appellant was standing in the banana garden on the north of his house and not on the western portion. He has admitted however that the contents in the can was not measured and also that he has however not seen any glass with the appellant nor has he seen the appellant vending arrack. 9. PW.1 is a police constable who was accompanying PW.3 in the detection and seizure along with PC.Nos.1074 and 1618. He has given evidence consistent with the testimony of PW.3 and he has also identified MO.1 can, as the can that was seized under Ext.P2 mahazar. According to PW.1 he was pointing out the scene of occurrence to the investigating officer. In cross-examination he asserted that the scene of occurrence is on the south-west of the house of the appellant. But however, he has further stated that he does not know the directions. 10. PW.6 is the Investigating Officer in the case. According to him, he was conducting the investigation in the case, on the directions of the C.I of Sultan Bathery. He deposed that in the morning of 21/09/2004, he went over to the Ambalavayal Police Crl.A.No.1185 of 2007 (C) -: 6 :- Station and saw the material objects as also the appellant; that PW.1 identified to him the scene of occurrence and that he prepared Ext.P7 mahazar of the scene of occurrence and questioned the witnesses. In cross-examination he has deposed that the scene of occurrence pointed out to him was a portion 20 meters west of the house of the appellant and was not on the northern side. All the same, Ext.P7 mahazar prepared by him shows that the scene of occurrence is 20 meters to the west from the north-western corner of the house of the accused and that the said portion is a banana garden. A portion 20 meters to the west of the north-western corner of the house of the appellant and the banana garden on the north of his house can be stated either as northern side or the western side of the house and there is no discrepancy in the testimony of those witnesses. 11. PW.7 is an attestor to Ext.P7 mahazar and he has admitted his signature in Ext.P7. PWs.4 and 5 are examined as independent witnesses who have attested Ext.P2 seizure mahazar. Both of them have disowned of having witnessed the seizure. Both of them are hostile witnesses. In cross-examination by the Public Prosecutor, PW.4 has stated that the signatures in Ext.P2 as also on the label on MO.1 are his signatures. He has also stated that he Crl.A.No.1185 of 2007 (C) -: 7 :- has studied upto the Std.IV and he usually signs after reading the contents in the papers and not without reading the contents. PW.5 also has admitted in cross-examination by Public Prosecutor that he has signed in Ext.P2, though he disowned his signature on the label on MO.1. Ext.P2 seizure mahazar contains the details of the interception, detection and seizure and it cannot be said that PW.5 has not understood the purpose for which he was signing in Ext.P2. 12. The contention advanced on behalf of the appellant that there is delay in production of the material objects before court and there is no explanation also regarding the custody of the material objects from 21/09/2004 to 27/09/2004 is also not of any merit in the circumstances of the case. It is true that PW.6 has deposed that he has not investigated into the delay in the material objects reaching before court. The delay is only of six days. Ext.P4 shows that MO.1 as also the samples in two bottles were received in court on 27/09/2004 with their seals intact. Had the seals been tampered with it would not have been accepted in court. Further in the forwarding note also the description of the samples is mentioned as having been sealed and labeled. Ext.P6 chemical analysis report shows that the samples received in the laboratory were in sealed packets containing 375 ml bottles and that the seals Crl.A.No.1185 of 2007 (C) -: 8 :- on the packet and on the bottles were intact and found tallied with the sample seals provided. In cross-examination nothing has been asked to any of the witnesses suggesting that there is any tampering with the seals or the material objects or the contents in MO.1 or in the samples. Without any challenge regarding the delay in producing the material objects before court and the consequent prejudice, if any, that has occasioned to the appellant, an argument for the first time cannot be entertained by this Court and there is no reason at all to presume in the circumstances that any prejudice is caused to the appellant by the delay in producing the material objects before court or in presuming that tampering must have occurred in between 21/09/2004 and 27/09/2004. Thus, there is absolutely no merit in the arguments advanced, assailing the conviction entered into by the court below against the appellant, especially, when the chemical analysis report also shows that on chemical analysis the contents of ethyl alcohol in the samples were found to be 36.04 and 36.16 by volume, on examination of the contents in the two samples forwarded for chemical examination. The conviction of the appellant for offence under Section 58 of the Abkari Act, therefore, deserves only to be confirmed. Crl.A.No.1185 of 2007 (C) -: 9 :- 13. The sentence awarded by the court below to the appellant is rigorous imprisonment for two years and to pay fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for a further term of six months. I am not of the view that the sentence imposed is excessive so as to be interfered with in appeal. In the result, confirming the conviction and sentence passed by the court below against the appellant, I dismiss this criminal appeal. Forward a copy of this judgment to the appellant through the Superintendent of Central Prison, Kannur. K.P.BALACHANDRAN, JUDGE ms