IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 18TH MARCH 2009 / 27TH PHALGUNA 1930 CRL.A.No. 667 of 2002() --------------------------------- SC.266/2000 of III ADDL. SESSIONS COURT (ADHOC), THRISSUR CP.18/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... APPELLANT/ACCUSED: ---------------------------------- BHASKARAN, S/O. KARIYAMPARAMBIL APPUKUTTAN, PUNNAYURKULAM VILLAGE, KUNNATHUR DESOM. BY ADV. MR.P.VIJAYA BHANU MR.TONY MATHEW RESPONDENT/COMPLAINANT: ------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.AMJAD ALI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A.No. 667 of 2002 ORDER ON CRL. MP NO.5612/2002 IN CRL.A NO.667/2002 DISMISSED 18/03/2009. SD/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A. TO JUDGE Rs/ S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.667 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 18th March, 2009 JUDGMENT Accused is the appellant. He faced trial for the offences punishable under Section 55(a) and (i) of the Abkari Act (for short 'the Act') on a report filed by the Excise Inspector, Excise Range, Chavakkad. The learned Sessions Judge, after trial, found him guilty of the offence under Section 55(i) of the Act and thereupon on his conviction thereunder, he was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.One lakh with default term of rigorous imprisonment for three months. As regards, the offence under Section 55(a), the learned Sessions Judge found him not guilty and so acquitted of that offence. Questioning the conviction entered for the offence under Section 55(i) of the Act and the sentence imposed thereunder, he has filed this appeal. 2. The gist of the prosecution case is that P.W.1, the Excise Preventive Officer with an excise party pursuant to getting information that sale of liquor without licence and authority is carried by the accused in his bunk shop situated near Althara road in Punnayurkulam village of Chavakkad taluk, after complying with the legal requirements for conducting a search, reached the bunk shop Crl.A.No.667/02 - 2 - and searched the premises in the presence of the accused. The search led to detection of 950 ML of Indian made foreign liquor, as kept in two sealed bottles and also in another bottle half filled, all of them kept in a plastic bag. The contraband was seized, preparing Ext.P1 mahazar. The accused arrested was later enlarged on bail. After completing investigation, P.W.5, the Excise Inspector laid the report before the court inducting the accused of the offence punishable under Section 55(a) and (i) of the Act. 3. The accused pleaded not guilty when the charges were made known. Prosecution examined P.Ws. 1 to 5, got marked Exts.P1 to P9 and identified M.Os.1 and 2, found guilty of the accused. The accused maintained his plea of innocence when the incriminating circumstances in the prosecution evidence were brought to his notice. No defence evidence was adduced. The learned Sessions Judge, after appreciating the materials produced, found him in guilty of the offence under Section 55(i) of the Act and, thereupon, he was convicted of such offence and sentenced as indicated. 4. Impeaching the conviction, the learned counsel for the appellant urged before me that the prosecution had miserably failed to show that any sale was conducted to sustain the charge that there Crl.A.No.667/02 - 3 - was sale of the contraband liquor in violation of the Act and Rules in his bunk shop. There was no whisper of evidence in the materials tendered by the prosecution to hold that the accused sold liquor in the bunk shop, submits the counsel. Conviction imposed against the accused is liable to be quashed on another ground as well, contends the counsel, as there was inordinate delay in producing the contraband seized in the case before the court. Though the contraband was seized on 12.1.1998, it was produced before the court only on 21.5.1998 and no explanation was offered for such inordinate delay. P.W.5 when questioned on the delay in production of the contraband, had no explanation at all, is the submission of the learned counsel. Learned counsel relied on Narayani v. Excise Inspector (2003(3) KLT 725) and Muraleedharan v. S.I. of Police (2007(2) KLT 662) to contend that the delay in production of the contraband involved in an abkari offence is fatal to the prosecution. If at all there was delay such delay should be properly explained, and in the absence of cogent and convincing explanation offered for the delay the prosecution case set up against the accused cannot be sustained, according to the learned counsel. Lastly, it was contended by the counsel that prosecution has not produced any Crl.A.No.667/02 - 4 - material to prove the possession of the bunk shop with the accused from where contraband was alleged to have been seized by the excise party. If at all the bunk shop was in the possession of the accused, nothing prevented the prosecution from collecting documentary material from the revenue authorities to prove such possession, is the submission of the counsel. Conviction of the accused in the above circumstances, according to the learned counsel, is unsustainable and it is liable to be interfered with. 5. Seizure of the contraband from a bunk shop possessed by the accused, as alleged by the prosecution, is convincingly established in the present case by the evidence of P.Ws. 1 and 2, the excise officials. Even the accused has no case that these officials have any personal grudge against him to foist a false case, and then perjure against him before a court of law. Not even such suggestion was made when they were subjected to cross-examination. The learned Sessions Judge who had the opportunity to watch P.Ws.1 and 2 when they tendered evidence found their testimony reliable, convincing and credible. After going through the testimony of these witnesses, I find no reason to take a different view. It is true that P.Ws. 3 and 4, two independent witnesses cited by the prosecution to Crl.A.No.667/02 - 5 - prove the seizure turned hostile to its case. These witnesses, P.Ws.3 and 4, who are attestors to mahazar admitted their signature in the document, but, disowned witnessing of the seizure of the contraband. These witnesses turned hostile in no way affected the prosecution case on seizure which is otherwise proved by the evidence of P.Ws.1 and 2 and also Ext.P1 mahazar prepared over seizure. Then the question is whether the delay in production of the contraband before the court, as contended by the learned counsel for the appellant, is fatal to the prosecution. In both the decisions cited by the counsel, the contraband is arrack. Normally, long delay in production of such illicit arrack may affect the test results since such a contraband is likely to be contaminated in course of time. Here, in the present case, two sealed foreign liquor bottle with the seals, kept intact and another half filled liquor bottle were seized. The accused has not made a case nor even set forth a suggestion that the liquor bottles were tampered. Merely because there was delay in production of the contraband, it cannot lead to a conclusion that it was likely to be tampered. In appreciating the question of delay, it is not the question whether there was delay but how far and to what extent prejudice, if any, had been caused to the accused by such delay Crl.A.No.667/02 - 6 - deserve to be examined. Other than showing that there was some delay in the production of the contraband and no explanation was offered by P.W.5, what was the prejudice, if any, caused to the accused by such delay has not been made out. In the given facts of the case, the delay in the production of the contraband, has innocuous value only. At any rate, I am not satisfied that any prejudice was caused to the accused by such delay. The challenge made that prosecution did not cause documentary evidence to prove the possession of the bunk shop with the accused, from where the contraband was seized deserve to be taken note of only for its rejection. As already stated, when direct evidence, as deposed to by P.Ws.1 and 2 on that score, is found reliable and convincing, the non- production of documentary evidence to prove the possession of the bunk shop with the accused is immaterial. The challenges mooted against the conviction, in the aforesaid circumstances, have no merit. One more aspect has to be considered, i.e., in a case of this nature, whether the prosecution has to prove actual sale of the liquor to prove the indictment under Section 55(i) of the Act. The bunk is admittedly situated in a public place. In such a bunk shop proved to be in the possession of the accused, the contraband prohibited by Crl.A.No.667/02 - 7 - law was kept. Then necessarily the accused has to offer an explanation to account for the possession of the contraband detected and seized. Presumption under Section 64 of the Act, which remained unrebutted, lead to the irresistible conclusion that the contraband was stored solely for the purpose of sale. So, even if actual sale was not detected by the excise party or no materials produced to show such sale, it will not in any way affect the conviction of the accused under Section 55(i) of the Act. 6. The learned counsel has made a fervent plea that in case the conviction is sustained, the sentence imposed against the accused may be interfered with. Though the maximum substantive term of imprisonment may extend to ten years, for the offence with which the accused was found guilty and convicted, the learned Sessions Judge had imposed only rigorous imprisonment for one year, with the mandatory punishment of fine prescribed by the statute. Sufficient indulgence has been shown by the learned Sessions Judge to the accused in awarding of punishment. I find no further interference is permissible. The appeal is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE Crl.A.No.667/02 - 8 -