IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 CRL.A.No. 750 of 2004() ----------------------- SC.70/2002 of ADDL. SESSIONS COURT, (ADHOC I), PALAKKAD .................... APPELLANT(S): ACCUSED NO.1: -------------------------------------------------- SWAMINATHAN, AGED 36 YEARS, S/O. KESAVAN, MOOCHAMKUNDU, MUTHALAMADA, PALAKKAD. BY MR.C.C.THOMAS, SENIOR ADVOCATE RESPONDENT(S): COMPLAINANT: --------------------------------------------------- STATE OF KERALA REPRESENTED BY PUBLILC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/03/2009, THE COURT ON 3/08/2009 THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- Criminal Appeal No.750 of 2004 - B ------------------------------------------ Dated this the 3rd day of August, 2009 J U D G M E N T The appellant and two others were prosecuted on a report filed by the Circle Inspector of Police, Kollengode Police Station, for the offences punishable under Section 55(a) and (i) of the Kerala Abkari Act, hereinafter referred to as 'the Act'. The other two accused remained at large and hence the case against the accused (A1) was committed to trial before the Sessions Court, Palakkad and then transmitted to Additional Sessions Court (Fast Track Court - I) Palakkad. The appellant on appearance before that court had pleaded not guilty to the offences. After trial, the learned Sessions Judge found him guilty of the offence under Section 55(a) of the Act and convicted thereunder he was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1 Lakh with default term of simple imprisonment for one year more. He was found not guilty of the offence under Section 55(i) of the Act and acquitted of that offence. Aggrieved by the conviction and sentence imposed under Section 55(a) of the Act, appellant has filed this appeal. Criminal Appeal No.750 of 2004 - B 2 2. The prosecution case in short is thus: Pursuant to reliable information that the accused/appellant and other accused (three in number) had stored liquor in contravention of the provisions of the Act in the property of the appellant/accused comprising a residential building in Moochamkundu in Muthalamada Village a police party headed by PW4, Sub Inspector of Police, Kollengode Police Station reached the place at about 2 pm on 6.3.1999. Police party in the presence of the appellant (A1) detected 19 cardboard boxes kept concealed under the soil beside the bund of a canal. The card board boxes contained 912 Indian Made Foreign Liquor bottles from which sample bottles were taken for analysis. Contraband detected was seized into custody, preparing P1 seizure mahazar, and the accused was arrested at the spot. After registration of the crime, preliminary investigation was conducted by PW6, the Assistant Sub Inspector of Police, and later, it was taken over by PW7, Circle Inspector of police, who on its completion laid the charge before the court indicting the accused, three in number, for the offences punishable under Section 55(a) and (i) of the Criminal Appeal No.750 of 2004 - B 3 Abkari Act. 3. The appellant alone appeared before court pursuant to summons and the other two accused remained at large. After splitting up the case against the other two accused, the case against the appellant was committed to the Sessions Court, Palakkad from where it was transmitted to Additional Sessions (Fast Track I) Court, Palakkad. The accused on appearance before that court pleaded not guilty when the charges were read over and explained to him. Prosecution thereupon examined PWs 1 to 8, got marked P1 to P7 and identified Mos 1 to 3 to prove its case. 4. The accused questioned under Section 313 Cr.P.C denying the prosecution evidence reiterated his plea of innocence. No defence evidence was adduced. The learned Additional Sessions Judge after appreciating the materials and hearing the counsel on both sides found the accused guilty of the offence under Section 55(a) of the Abkari Act, convicted and sentenced him thereunder as indicated above. He was found not guilty of the offence under Section 55(i) of the Abkari Act Criminal Appeal No.750 of 2004 - B 4 and acquitted of that offence. Aggrieved by the sentence and conviction imposed for the offence under Section 55(a) of the Abkari Act, he has come up with this appeal. 5. I heard the counsel for the appellant and also the learned public prosecutor. 6. Learned counsel for the appellant/accused assailed the conviction contending that there is no legal evidence proving the culpability of the accused for the offence for which he was found guilty and convicted. Prosecution has not let in any convincing evidence to prove that the contraband detected and seized was under the conscious possession of the accused or from the property which was under his possession. Pointing out that the contraband was seized as concealed beside a bund close to a canal, the learned counsel submitted that there is no documentary or oral evidence to prove that the site of concealment formed part of the property of the accused. Ext.P4 certificate produced by the prosecution is impeached by the counsel contending that it is totally insufficient to show that the contraband was seized from the property of the accused. The Criminal Appeal No.750 of 2004 - B 5 learned counsel for the accused contended that conviction of the accused on the presumption that he was in possession of the property from where it was detected is impermissible unless there is some evidence establishing his possession over the site from where the contraband was detected and seized. Presence of the accused when contraband was detected and seized by the police as deposed by PW1, an attester to P1 seizure mahazar, according to the learned counsel, is hardly sufficient to found a conviction since, that circumstance without anything more would constitute only a suspicion and nothing more, and it was not sufficient to hold him guilty of the grave offence charged against him. To buttress that submission, learned counsel relied on the decision reported in Nellikkunnel Jose v. State of Kerala [2000 (2) KLJ NOC 29]. The conviction of the accused was based on no evidence and as such it is liable to be interfered with, according to the learned counsel. There was five days delay in production of the contraband seized before the court for which no explanation was offered, is also highlighted by the counsel to assail the conviction placing reliance on Radhakrishnan v. Criminal Appeal No.750 of 2004 - B 6 State of Kerala (2009(1) KHC 469). Failure of the prosecution to examine the thondi articles to establish that the contraband produced with the sample remained untampered till analysis over the sample was forwarded and sent to the forensic science laboratory, is also canvassed by the counsel as a serious lacuna discrediting the prosecution case. 7. The learned public prosecutor submitted that the materials produced by the prosecution has established convincingly and unerringly that the contraband, a large quantity of Indian Made Foreign Liquor, 912 bottles, was kept concealed beside the bund near a canal in the property owned and possessed by the accused and the detection and seizure was made in his presence, leaving no room for any doubt, his culpability for the offence charged. When possession of the contraband with the accused having been proved by cogent and convincing legal evidence the burden was on the accused to rebut the presumption under Section 64 of the Abkari Act to account for such possession and a mere plea that the property was not under his possession, from where the contraband was detected Criminal Appeal No.750 of 2004 - B 7 and seized, without anything more, according to the learned public prosecutor, does not lend any assistance to the accused. Conviction of the accused in the proved facts of the case, it is submitted by the learned public prosecutor, deserve only to be confirmed. 8. The main thrust of attack presented by the learned counsel for the accused to assail the conviction is based on the footing that the prosecution has not established possession of the site from where the contraband, a large quantity of liquor bottles, to be precise 912 bottles of Indian Made Foreign Liquor, was seized with the accused by cogent and convincing evidence. I am afraid that in a case of this nature, the culpability of the accused for possession of the contraband detected cannot solely rest on production of documentary evidence, establishing his possession over the site from where it was detected. The totality of the facts and circumstances presented by the materials produced, the evidence let in by the prosecution, whether it is oral or documentary, in the back drop of the surrounding circumstances connected with detection and seizure, has to be appreciated to Criminal Appeal No.750 of 2004 - B 8 determine whether the accused is culpable for the offence charged against him. Prosecution case is that pursuant to reliable information that the accused has kept in his possession unauthorisedly, in his property, comprising a residential building, large quantity of liquor bottles, a police party headed by PW4, the Sub Inspector of Police, Kollengode Police Station, proceeded to that spot and after reaching there in the presence of the accused detected the contraband beside a bund close to a canal in the backyard of the residential building in his property. PW4, the Sub Inspector of Police, and PW5, the police constable, who were in the police party, which detected and seized the contraband in the presence of the accused, gave evidence in support of the prosecution case. P1 is the seizure mahazar, a contemporaneous record prepared over the seizure of the contraband and collection of three bottles from the contraband as samples, prepared in the presence of the accused and the attestors. PW1, an attestor to P1 mahazar has also deposed that the police detected and seized the contraband covered by P1 mahazar in the presence of the accused. PW1 who claimed to be Criminal Appeal No.750 of 2004 - B 9 a wood cutter has no axe to grind against the accused, and, apparently, there is no reason to doubt the trustworthiness of his sworn testimony. PW1 accounted for his presence at the spot as being engaged for cutting trees in a neighbouring property. Challenge made by the accused that he was not a wood cutter and he did not see the accused was denied by the witness. He has also given evidence that when the contraband was detected and seized, the police beat the accused which, in the given facts, add credence to his version. The evidence tendered by prosecution through PW4, the Sub Inspector of Police, PW5, the police constable and PW1, demonstrate that the contraband was detected and seized in the presence of the accused at a spot beside a bund close to a canal in the backyard of the residential building of the accused. Prosecution must prove precisely with concrete evidence by convincing documents, his possession over the site from where the contraband was detected, is the challenge raised to impeach the seizure. The prosecution case is that the concealment of contraband was made by the accused and none other. In appreciating that challenge, first of all, it has Criminal Appeal No.750 of 2004 - B 10 to be noted that PW4 and PW5 are responsible police officers and in discharge of their official duties, on information over the concealment of contraband in the property of the accused, PW4 and the police party proceeded to that spot and thereafter in the presence of the accused detected and seized the contraband at a site in the backyard close to his residential building. The accused has no case that PW4 and PW5, the police officials, have got any enmity or ill will to implicate him falsely in a grave offence under the Abkari Act. The learned Additional Sessions Judge, who recorded the evidence of PW4 and PW5, after having had the opportunity to watch their demeanour and department, found their testimony reliable, trustworthy and testamentary. On going through their evidence I find no reason to take a different view. In appreciating the challenge made by the accused disowning the possession over the site from where the contraband was detected and seized it is interesting to note that the challenge during the cross examination of PW4 was that contraband was not seized from the site alleged, disputing the presence of the accused also at the time of detection and seizure. To PW5 also the challenge Criminal Appeal No.750 of 2004 - B 11 was that the contraband was not seized and the accused arrested from the site alleged. It is interesting to note the accused has not even a suggestion to those witnesses that the site alleged from where the seizure was made does not form part of his property nor situate in the backyard of his residential building close to a canal. P2 mahazar prepared over the site from where the contraband was detected show the proximity of the site with the residential building under the occupation of the accused. P4 certificate issued by PW3, village officer would show that the accused is having possession of three acres 5 cents land in survey No.120 in Moochamkundu. There is also no challenge to PW3, during his cross examination, that the accused does not possesses such an extent of land in that place though that witness was questioned with reference to the documents relied on for issuing P4 certificate. In appreciating the totality of the evidence let in by the prosecution, it can be safely concluded from the sworn testimonies of PWs 4, 5 and 6, police officials, PW1 an attestor to P1 seizure mahazar and PW3, village officer, who issued P4 certificate, coupled with P1 seizure mahazar, P2 Criminal Appeal No.750 of 2004 - B 12 scene mahazar and P4 certificate, that the site from where the contraband was detected and seized was situate close to the residential building of the accused under his possession and that in respect of the site of detection and seizure as forming part of the property under his possession no challenge whatsoever was made by the accused when the above said prosecution witnesses were examined. There is no merit in the challenge canvassed that the prosecution failed to establish the possession of the site with the accused and as such its case is bound to fail. In a case of this nature, where the presence of the accused at the site, it is not the site from where the contraband was detected which has to be given significance. But, the incriminating circumstances which are brought out as against the accused connecting him with the concealment of the contraband from which it has to be gathered whether it was the accused who concealed the contraband at that site even if the possession of the land belongs to another. If the proved circumstance establish that the concealment of the contraband was made by the accused, he cannot escape from the culpability of committing grave offence in Criminal Appeal No.750 of 2004 - B 13 violation of the Abkari Act. The evidence of PWs 4 and 5, police officials with that of PW1, the attestor to the scene mahazar, amply demonstrate and establish in unmistakable terms that the concealment of the contraband, from where it was detected and seized, was at a site situate in the backyard of the residential building of the accused and it was detected in his presence . The circumstances established that site of concealment found part of the property under possession. The decision relied by the learned counsel for the accused, Radhakrishnan's case (supra) which related to the detection and possession of the contraband from a residential building which belonged to the father of the accused involved in that case, has no relevance or connection with the present case. A large quantity of contraband was detected as concealed in the property under possession, in the backyard of his residential building, and it was seized in his presence. This was not a case where the accused is inculpated for a mere presence at the site. The learned counsel for the accused has relied on the decision reported in Nellikkunnil Jose's case (supra) to contend that his presence at the time of Criminal Appeal No.750 of 2004 - B 14 seizure does not prove his guilt in the concealment of the contraband or culpability in the offence imputed. In the reported decision, the presence of the accused near a lorry in which contraband was transported was held not sufficient to prove the offence imputed against him under the Abkari Act. But, in the present case, the police party went to the spot, the property comprising the residential building of the accused, after reliable information that he had concealed contraband in that place and the contraband was detected and seized in his presence. Though the site from where the contraband was detected and seized was disputed, the accused has no case that the site was not possessed by him, during the cross examination of the police officials and also attestor to the seizure mahazar. Prosecution witnesses, PWs 4 and 5 have asserted that it was seized from the site alleged i.e., in the backyard of the residential building in the property possessed by the accused. So much so, the above reported decision has no connection or application to the present case. 9. There was delay of four days in production of the Criminal Appeal No.750 of 2004 - B 15 contraband before the court and the nonexamination of the thondi clerk in the case pressed into service by the learned counsel for the accused in the given facts of the case has no merit at all. Learned Additional Sessions Judge, before whom the challenge was pressed into service has observed that the large quantity of the contraband, 912 bottles, securing its preservation and transportation for production before the court, necessarily, might have taken some time, and in that view the delay of four days has no significance in the case. I find no reason to differ from that view. Nonexamination of the thondi clerk is also immaterial. The accused has no case that sample collected from the contraband produced was tampered, and moreover it has to be noted that the samples collected were sealed unopened bottles from among the 912 liquor bottles, the contraband seized in the case. The challenge raised against the conviction of the accused on those grounds also are found meritless. I find that the finding of guilt entered against the accused on which the conviction was founded against him is fully supported by legal evidence, and it deserves to be confirmed, and I do so. Criminal Appeal No.750 of 2004 - B 16 10. Convicting the accused, the Additional Sessions Judge, has sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs.1 Lakh with default term of simple imprisonment for one year. As regards the fine imposed, it is the mandatory minimum prescribed for the offence with which he was found guilty and convicted, and no interference thereof is permissible. So far as the sentence of imprisonment is concerned, I find that a term of rigorous imprisonment for two years would suffice the ends of justice. So much so, sentence of rigorous imprisonment of three years imposed by the court below is modified and limited to two years of rigorous imprisonment retaining the fine imposed with the default term as indicated above. The appeal fails and is dismissed, except to the extent of modification of the sentence as indicated. S.S.SATHEESACHANDRAN, JUDGE. bkn/-