IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 CRL.A.No. 1769 of 2003() ----- ------------------------- (AGAINST JUDGMENT IN SC.205/2001 of ADDL. SESSIONS COURT (ADHOC), FAST TRACK COURT- I,THRISSUR C.P. 96/2000 OF JUDL. MAGISTRATE OF FIRST CLASS COURT - I CHALAKUDY) .................... APPELLANT(S): ACCUSED; -------------------------------------- JOY, S/O.DEVASSY, MAKKATTUKULAM, KODASSERY VILLAGE, TRICHUR DISTRICT. BY ADV. SRI.A.C.DEVY RESPONDENT(S): COMPLAINANT: ----------------------------------------------- STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.C.M. NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. ------------------------- CRL.A.NO. 1769 OF 2003 ------------------------------------- Dated this the 26th day of June, 2009. J U D G M E N T This is an appeal preferred against the conviction and sentence passed by the Additional Sessions Judge, Fast Track Court -I (Adhoc Court), Thrissur in S.C. 205/01. The accused faced trial under section 55(i) and 58 of the Abkari Act and he was convicted and sentenced to undergo Rigorous Imprisonment for one year under both sections and pay a fine of Rs. 1,00,000/- with a default sentence of 3 months. It is against that decision the accused has come up in appeal. 2.The points that arise for determination in the appeal are : 1. Whether the accused is guilty offences under sections 55(i) and 58 of the Abkari Act? 2. Is there anything to interfere the conviction , in case of guilt what is the proper sentence ? CRA. NO. 1769/2003 2 3. Points 1 and 2: It is the case of the prosecution that on 7.10.1999 at about 8.20 p.m. in front of the Tea Shop of one Antony, the accused was found in possession of a Jerry can of 10 litres capacity, he was apprehended and examined the liquid and on examination it was found by smell and taste that is illicit arrack and therefore in his presence sample was taken in sealed. The reminder also was taken and sealed. He was arrested and produced before the court. Pws 1 to 6 were examined and Exts. P1 to P7 and Mos 1 and 2 were marked. On analysis the trial judge found in favour of the prosecution. The evidence in this matter supporting the prosecution is that of PW1 and PW4. PW1 was the Sub Inspector of Police, Vallikullangara Police station and on 7.10.1999 while he was on patrol duty and when he reached a place called Balan Peedika, they got reliable information that one Joy was selling arrack and therefore, they proceeded and found from the canal bund the accused with a can. Though he attempted to run away he was apprehended CRA. NO. 1769/2003 3 and in the presence of the witnesses he was examined and it was found that it contained 7 litres of liquor which on smell and taste was found as illicit arrack. Therefore, the samples were taken in three 180ml containers and it was sealed. He was arrested and produced before the court on 8.10.1999 with the material objects. PW1 had been cross-examined at length and he would depose before the court that the sample was tied with a cloth and sealed. But it was not written in the seizure mahazar. He had denied the suggestion that it had not been sealed. He also speakes about the tubelight in the place of incident According to him there was some mud colour for the liquid that was found. Other witness is PW4, he would say that the liquid did not have the colour of pure water. Now the learned counsel for the defence had built up an argument on the sentence with the report of the Chemical analysis. In the Chemical Analysis report it is stated that the liquid received was 180 ml clear and colourless liquid alleged to be illicit arrack. It was found to be alcohol and contained 43.72 % by volumn CRA. NO. 1769/2003 4 of ethyl alcohol. Now the learned counsel would submit it was the mudish liquid that was taken as sample and Chemical Examiner's report would show that it was a clear and colourless liquid that was received and so the sample that had been taken has not been sent for chemical analysis . One cannot state that the argument is without basis at all. But the factum which the court has to consider is whether it is the sample that is taken from the possession of the accused that is sent for chemical analysis. It has to be stated that the sample was sealed and it was produced before the court on the very next day and the court also found everything intact and directed the samples to be retained and rest to be handed over to the Sub Inspector of Police for safe custody. Suppose if it is true then a mere statement made by the Sub Inspector in the cross- examination cannot be sole basis to militate against the prosecution. The evidence of Pws 1 and 4 would clearly indicate that sample was taken from the can and it was sealed in the presence of the accused and it was produced CRA. NO. 1769/2003 5 before the court and there was no iota of suspicion for the Magistrate Court regarding the correctness of the sample or in otherwords he did not find any tampering anywhere. It is that liquid which has been sent of Chemical analysis. It has to be remembered when delay occurs there is possibility of the sediments settling down. It has to be remembered in this case that the sample was taken as early as on 7.10.1999 and it was sent of Chemical Analysis only on 1.12.1999 it is almost after 2 months. Therefore there can be always settlement of the sediment and therefore the colourless liquid cannot be said to be the one which is not seized from the accused. It has to be remembered as well that nowhere in 313 also there is any statement given by the accused that he was in possession of some other coloured liquid. When the possession of a liquid is proved by the prosecution. Section 64 mandates that the method of possession has to be proved by the accused. So just because the Sub Inspector had stated it was liquid with mud colour, I am not prepared to hold that it was a tampered sample that was CRA. NO. 1769/2003 6 sent for Chemical Analysis. So the evidence of PW1 coupled with that of PW4 and other attending circumstance establish that the accused was found in possession of the illicit liquid. The court also found that there was a glass with the can which can be nothing but for the purpose of sale. So therefore, I find the conviction under section 58 and 55(i) of the Abkari Act has to be confirmed. 4.Now turning to the question of sentence. Contraband liquor seized is 7 litres of illicit arrack. It is a prohibited liquor within the state. Nobody is expected possess it and distillation of illicit arrack causes great danger to the society and youngsters start drinking. But going through 313 examination I find he has got a large family to be looked after and therefore a leniency is requested. I am inclined to reduce it to each under 6 months both section and they shall run concurrently with a fine of Rs. 1,00,000/- and default sentence shall be for two months. CRA. NO. 1769/2003 7 In the result, the criminal appeal is disposed of as follows. The conviction is confirmed. The sentence is modified.The accused is sentenced to undergo simple imprisonment for 6 months each under section 55(i) and 58 of the Abkari Act and pay a fine of Rs. 1,00,000/- . It shall run concurrently and in default of payment of fine to undergo further imprisonment for 3 months. He is also entitled to set off contemplated under section 428 of the Cr.P.C. M.N.KRISHNAN, JUDGE ln.