IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 8TH FEBRUARY 2011 / 19TH MAGHA 1932 CRL.A.No. 965 of 2003() ----------------------- SC.34/2000 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD .................... APPELLANT(S): -------------- P.K.NARAYANAN, S/O.KORAN, PUTHIYAPARAMBIL HOUSE, CHITTARICKAL VILLAGE. BY ADV. SRI.M.SASINDRAN SRI.M.B.PRAJITH RESPONDENT(S): --------------- STATE REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.SABU SREEDHARAN. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/02/2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Criminal Appeal No.965 of 2003 ----------------------------------------------- Dated 8th February, 2011. J U D G M E N T This appeal arises from the order of conviction and sentence passed against the appellant, alleging offence under Section 55(a) of Abkari Act to undergo rigorous imprisonment for 3 (three) years and to pay a fine of Rs. 1 lakh (Rupees One lakh) in default to undergo, rigorous imprisonment for six months. Set off was allowed. 2. According to prosecution, on 25.12.1998 at about 2.45 p.m. appellant was found in possession of 91 packets of arrack, and each packet contained 100 ml. capacity. The accused was found running away from his house with a sack when the police party went to his house on getting information that arrack was being sold from his house. He was apprehended and the articles were seized under a mahazar Ext.P2. The F.I.R. was registered as Ext.P2 and after investigation, charge was laid against the appellant. 3. To prove the prosecution case, prosecution examined PWs.1 to 5 and marked Exts.P1 to P5. The accused stated that he is innocent of the allegations made, while Crl.Appeal No.965/03 2 questioned under Section 313 Cr.P.C. The trial court, on analysis of the evidence in detail, found that the prosecution proved that the appellant was in possession of arrack and hence, he was convicted under Section 55(a) of Abkari Act. The said conviction and sentence passed against the appellant are challenged in this appeal. 4. Heard both sides and perused the records. Learned counsel for appellant argued that as per the evidence of PW3, the material objects were received in the court only on 16.2.1999 whereas the seizure was effected on 25.12.1998. Thus, there is a long delay in producing the articles for which PW3 could not give any explanation. On going through the evidence, it is clear that PW3 made such an admission. But , it is needless to say that it is not the mere delay which is fatal to prosecution. The question is whether there is any chance for tampering with the articles seized and whether delay in production of articles caused any prejudice to the accused. 5. On an evaluation of the evidence on record, it cannot be said that the delay caused any prejudice to accused Crl.Appeal No.965/03 3 nor it could raise any doubt in the mind of the court regarding any chances for manipulation. In fact, PW3 clearly stated in his evidence that till the articles were produced in court on 16.2.1999, the articles were kept in his custody. There is no challenge on this. In such circumstances, the argument can only be rejected. 6. Learned counsel for appellant also argued that as per the mahazar, Ext.P2, the articles were sealed, but what was the seal used is not in evidence. In forwarding note also, no seal is seen used. Therefore, there was no distinguishing mark available for the Chemical Analyst to identify the article, which was analysed in this case, it is argued. There is nothing in evidence to show that the articles seized in this case were the articles analysed by the Chemical Analyst, it is argued. 7. This argument also cannot be accepted. On a perusal of forwarding note, Ext.P4, it is clearly revealed that samples were sealed with the seal of the court and specimen seal was also affixed and forwarded to the Chemical Analyst and the said forwarding note is counter signed by the learned Crl.Appeal No.965/03 4 Magistrate. But, no question is put to any of the witnesses regarding absence of seal on Ext.P4. The Chemical Analyst as per Ext.P5 reported that the seal of each bottle was intact and found tallying with the sample seal provided. Therefore, the argument can only be rejected and I do so. 8. On going through the evidence, I find that PW1 and PW3 are the official witnesses and both of them deposed before the court that on the date of occurrence, PW3, the Sub Inspector got information that the accused was engaged in sale of arrack and they proceeded to the spot and on reaching the courtyard of the house of the accused, the accused was found running away with a sack. The officials chased him and apprehended him and on examination of the sack, it was found to contain 91 packets of arrack each containing 100 ml. Samples were also taken in two bottles, after opening four packets. All the articles were seized. 9. Though PW1 and PW3 were cross examined, nothing is brought out from the evidence to sub-section discredit their testimony. The accused has no case that they Crl.Appeal No.965/03 5 were motivated to perjure against him. No suggestion was made that they were stating falsehood against him because of any particular reason. It is true that PW2, who is an independent witness turned hostile to prosecution. However, he admitted his signature in Ext.P1. In such circumstances, I do not find any reason to interfere with the conviction entered into by the trial court against appellant under Section 55(a) of the Abkari Act. The sentence imposed is only rigorous imprisonment for three years and to pay a fine of Rs.1,00,000/- and in default to undergo imprisonment for six months. I do not think that the sentence imposed is excessive. Hence, this appeal is dismissed. K.HEMA, JUDGE. tgs