IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 CRL.A.No. 1007 of 2002-D ------------------------ SC.654/1999 of ADDL.SESSIONS COURT (ADHOC)II, KASARAGOD .................... APPELLANT(S): ACCUSED --------------------- NARAYANA SHETTY, S/O. ENKAPPA SHETTY, 40/98, SOORDELU, ENMAKAJE VILLAGE, KASARAGOD. BY ADV. SRI.M.RAMESH CHANDER SRI.V.TEKCHAND RESPONDENTS: COMPLAINANT -------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. EXCISE INSPECTOR, BADIYADKA RANGE. BY PUBLIC PROSECUTOR MR. PUZHAKKARA MUHAMMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/06/2009, THE COURT ON THE 5-8-2009 DELIVERED THE FOLLOWING: ORDER ON CRL.M.P.NO. 8029/2002 IN CRL.A. NO. 1007/2002 DISMISSED. 5-8-2009 SD/-M.C. HARI RANI, JUDGE TRUE COPY P.S. TO JUDGE M.C. HARI RANI, J. ====================== CRL.APPEAL NO.1007 of 2002 ======================= Dated this the 5th August 2009 JUDGMENT The appellant/accused stands convicted for the offence punishable under Section 55(a) of the Abkari Act and he is sentenced to undergo rigorous imprisonment for a term of three years and to pay a fine of Rs.1 lakh with a default sentence to undergo rigorous imprisonment for six months. This is under challenge in this appeal. 2. According to the prosecution case, at about 1.30PM on 7.3.1998, PWs. 1 and 4 while on patrol duty and reached near Soordely, situated at Kattupukkeperla Road in Enmakaje Village, found the accused walking towards them through the road side carrying a black plastic can in his right hand. The accused tried to escape from the scene. Suspecting the accused, he was intercepted and verified the can. It was found that the can CRA.1007/2002 -2- contained 10 litres of country made illicit arrack. Accordingly, the appellant/accused was arrested and Ext.P1 seizure mahazar was prepared. It is recorded therein that 300 ml. liquid was taken as sample and collected in a 375 ml bottle. The remaining liquid with the can and the sample were sealed. The entire things were seized and the seized articles were taken to the Office. The Excise Inspector, PW4 registered the case and prepared the occurrence report Exhibit P2 and property list, Exhibit P3. The accused was produced in court on the same day along with the seized articles. The same was sent to the Chemical Analyst. Exhibit P5 is his report. It reveals that the sample contained ethyl alcohol 37.51 % by volume. PW4 investigated the case, questioned the witnesses and laid charge sheet before court on 17.4.2008 along with seizure Mahazar Exhibit P1. In the light of the evidence given by PWs. 1 and 4 and on the basis of Exhibit P1 seizure mahazar, Exhibit P2 occurrence report and Exhibit P5 report of Chemical Analysis, the accused was found guilty of being in possession of 10 litres of arrack, which was seized as per CRA.1007/2002 -3- Exhibit P1 seizure mahazar. Accordingly, he was convicted and sentenced as mentioned above. 3. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor. 4. It is submitted by the learned counsel for the appellant that Exhibit P1 seizure mahazar reveals that it was prepared on 7.3.1998, but the same was produced before court only on 17.4.1998. It also contains a correction in the quantity of sample taken as 300 after striking 200 written therein. It is also submitted by the learned counsel that the delay caused in producing Exhibit P1 seizure mahazar and the correction therein would cast doubt regarding the identity of sample which is disputed. Thus, procedural irregularities are there and the delay caused prejudice to the accused. Independent witnesses, examined as PWs. 2 and 3 to prove the seizure mahazar Exhibit P1 did not support the case of the prosecution. Therefore, it is submitted that the appellant/accused is entitled for acquittal. 5. It is submitted by the learned Public Prosecutor that all CRA.1007/2002 -4- the procedures necessary with regard to taking of sample, seizure, independent witnesses, etc. are complied with and there is no ground to reverse or to modify the judgment of the court below. 6. It is true, as submitted by the learned counsel for the appellant that the seizure mahazar Exhibit P1 was produced before Court on 17.4.1998. Thus, there is delay of 41 days. But the case of PWs. 1 and 4 was that the offence was detected on 7.3.1998 at 1.30 PM, the accused was apprehended then and there, prepared the seizure mahazar,Exhibit P1 and registered the crime. On the same day, the accused was produced before court along with the contraband article and the sample as revealed from Exhibit P2 occurrence report and Exhibit P3 the property list. The quantity of sample taken therein was noted in Exhibits P2 and P3 as 300 ml. Thus, it is evident that the accused was arrested and produced before court on 7.3.1998 itself along with the seized article, i.e., on the same day of detection of the offence. No correction is there in Exhibits P2 and CRA.1007/2002 -5- P3, the occurrence report and the property list. The quantity of sample taken was noted therein as 300ml. Exhibit P1 tallies in material particulars with that mentioned in Exhibits P2 and P3. Merely because of the correction with respect to the quantity of the sample in the seizure mahazar, the accused cannot claim any benefit to get acquittal. PWs 1 and 4 have also testified that the quantity of sample taken was 300 ml in a bottle of 375 ml capacity. Therefore, the delay for producing the seizure mahazar which produced before court on 17.4.1998 along with the charge sheet after completion of the investigation of the case by PW4 will in no way prejudice the accused and it will not cast any doubt regarding the veracity of the seizure mahazar Exhibit P1. 7. It is true that both the independent witnesses did not support the prosecution case and they deposed before court that they did not know the accused and they have not witnessed the incident. But, they have admitted their signature in the seizure mahazar Exhibit P1. In the present case, the detection of the offence, seizure of the contraband article and the involvement of CRA.1007/2002 -6- the accused in the crime is proved. The testimony of official witnesses, PWs 1 and 4 is convincing and can be accepted. Their evidence has not been shattered in the cross-examination in material particulars. Exhibit P5 chemical analysis report reveals that the seal on the bottle was intact and found tallied with the sample seal provided. The bottle contained 300 ml liquid and on analysis, the sample of liquid contained 37.51% by volume of ethyl alcohol as noted in Exhibit P5. Therefore, there is no reason for reversing the conviction. 8. Anyhow, the sentence of imprisonment for three years is excessive and it is reduced to six months, especially when he is liable to pay a fine of Rs.1 lakh which is the minimum in terms of the statute prescribing penalty and with the default sentence to undergo rigorous imprisonment for six months. Set off is allowed. The Criminal Appeal is disposed of accordingly. M.C. HARI RANI, JUDGE ks. CRA.1007/2002 -7- M.C. HARI RANI, J. CRL.A. NO. 1007 of 2002 JUDGMENT 5th August 2009