IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 CRL.A.No. 692 of 2003() -------------------------------- SC.303/2000 OF THE ADDL.SESSIONS JUDGE, (AD HOC-II), KASARAGOD ..................................................... APPELLANT(S): ACCUSED ------------------------------------- K.V.KANNAN, 50/99, S/O. KANNAN, MALLAMBAI, MUNDOTTU, MADIKAI VILLAGE. BY ADV. SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE RESPONDENT(S): COMPLAINANT ----------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SMT.M.K.PUSHPALATHA, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.692 OF 2003 -------------------------- Dated this the 1ST day of July, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the conviction and sentence passed by the Addl.Sessions Judge, Ad hoc -II, Kasargod in S.C.303/2000. The accused was found guilty u/s.55(a) of Abkari Act and sentenced to undergo imprisonment for a period of 1 year and to pay a fine of Rs.1 lakh and in default to undergo further imprisonment for a period of 3 months. It is against that decision the appeal has been preferred. The points that arise for determination in the appeal are, 1.Whether the materials are sufficient to hold that the accused has committed the guilt u/s.55(a) of the Abkari Act ? 2.In case of guilt whether the sentence awarded is excessive ? CRL.A.No.692 OF 2003 2 2. Points 1 and 2 :- It is the case of the prosecution that on 31.7.99 on receiving a reliable information that, the accused was selling illicit arrack, the police party headed by PW5 proceeded to the place and when they reached near the house of the accused they found him on a path way carrying a 10 ltr. can, black in colour. He was apprehended and the liquor in the can was examined by tasting and smelling and it was found to be illicit arrack. Thereafter in the presence of the accused and the witnesses, samples were taken in two 375 ml. bottles and it was sealed in the presence of the accused and the accused was arrested. Subsequently, the samples were produced before the court and it was sent for chemical analysis, which revealed that one bottle contained ethyl alcohol by 24.62 % and the other 24.70 %. The evidence of Pws.1 and 5 was analysed by the court below, to accept the case of the prosecution to find the guilt of the accused. 3. The learned senior counsel appearing for the appellant had mainly canvased two points before me, one is regarding the difference in percentage of ethyl alcohol in the alleged CRL.A.No.692 OF 2003 3 samples taken and also the delay in producing the material objects before the court for further steps. So far as the first point is concerned, it can be seen from the chemical analysis report that two bottles were received and tests were conducted and in one bottle the percentage by volume of ethyl alcohol was 24.62 % and the other 24.70%. Or in other words, the difference in the strength of the alcohol is 0.8. It has to be remembered that, samples are taken from a larger container and there may not be uniform shaking before the sample is taken. So it is always possible to have a narrow margin with respect to the percentage in volume of the ethyl alcohol. So far as this case is concerned, it is so negligible that has to be ignored. It would not give rise to any presumption that, the samples were taken possibly from different containers in order to give a benefit of doubt to the accused. 4. Now more about the serious contentions. According to the learned counsel, the arrest and seizure was on 31.7.99 at 5 P.M. Ext.P1 is the seizure mahazar. It would show that, one black can and two bottles of 375 ml. samples were taken in the CRL.A.No.692 OF 2003 4 presence of the witnesses and the accused, which were sealed and taken. Ext.P5 is the property list. It is seen produced on 5.8.99 and there was an order by the learned Magistrate to entrust the black can to the Hosdurg Police station. It is very clearly stated that, what is received as item No.2 is two bottles of 375 ml. arrack, with the signature of the accused, witnesses and the Sub Inspector of police. So a perusal of Exts.P1 and P5 would conclusively establish that, sample bottles were sealed and signed by the accused, the witnesses and the Sub Inspector of police. So what is seized, is produced before the court. The learned counsel is right, if it creates a suspicion in the mind of the court that there was a possibility of tampering the liquor. This court has held in so many decisions that, in order to convict under the provisions of Abkari Act, the court has to satisfy its conscience that the sample is taken from the container, which was seized and it was that liquor that was produced before the court which was subjected to chemical analysis. There can not be any doubt about that proposition. But the question in each case would depend upon the facts CRL.A.No.692 OF 2003 5 and circumstances of that case and the possibility of a tampering. As stated by me earlier, the way in which the sampling was done is specifically stated in the seizure mahazar and it is with that description, with the seal and signature the liquor is produced before the court and when the court receives the sample it has to be presumed that, it was as described in the property list. So in other words, materials are clear to show that, what had been produced before the court is, what is seized from the accused. So the mere delay of 4 or 5 days in producing the sample before the court alone can not be a criteria, for the reason that it has not caused any prejudice to the accused in this case. Further, the sample has been forwarded for chemical examiner's report and the chemical examiner's report would show that, the seal on the bottle was intact and found tallied with the sample seal provided. So right from the moment of seizure, till it has received in the chemical analyst's lab, the seal on the bottle had remained intact. Therefore, there can not be any doubt regarding the correctness of sending the sample which has been seized from CRL.A.No.692 OF 2003 6 the party. So on the mere premise that there was a delay of 4 or 5 days in sending the sample, can not be considered as a ground to acquit the accused in this case. Now regarding the other aspects, Pws.1 and 5 has deposed before the court that, how they proceeded to the place and how and from where the accused was found with the can and how he was apprehended and sample taken and sealed. They have identified the accused also. So the materials would show that the accused was found in possession of illicit arrack of the description mentioned and therefore the finding of guilt u/s.55(a) of the Abkari Act can not be faulted. It is confirmed. 5. Now turning to the question of sentence. The accused is about 50 years old and he has got a large family to look after. There are no other antecedents of getting involved in any other Abkari case. Taking into consideration his submission that he is ailing and there is nobody else to look after the family, I am inclined to show leniency regarding the sentence. It is true that the sale of illicit arrack is a social menace to the society and that also has to be borne in mind. CRL.A.No.692 OF 2003 7 So balancing the both, I feel the sentence of imprisonment u/s.55(a) of Abkari Act can be, reduced one into a period of 6 months and the default sentence for non payment of fine shall be reduced to one month. 6. In the result the criminal appeal is disposed of as follows :- 1.The finding of guilty u/s.55(a) of Abkari Act is confirmed. 2.The sentence is modified and the accused is sentenced to undergo simple imprisonment for a period of 6 months and to pay a fine of Rs.1 lakh and in default to undergo a further imprisonment of one month. He is also entitled to set off as contemplated u/s.428 of Cr.P.C. The lower court shall execute the sentence. M.N.KRISHNAN, JUDGE ami.