IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 8TH APRIL 2009 / 18TH CHAITHRA 1931 CRL.A.No. 340 of 2002() ----------------------- SC.103/1999 of ADDL. SESSIONS COURT (ADHOC), THRISSUR CP.24/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... APPELLANT/SOLE ACCUSED: ------------------------------------- DHARMAN, S/O. VALATHATTIL PANKAN, MULLASSERY VILLAGE, MADHUKARA DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT/COMPLAINANT: -------------------------------------- THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P.SMT.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.3.2009, THE COURT ON 08/04/2009 DELIVERED THE FOLLOWING: ORDER ON CRL.M.P.NO.3294 OF 2002 IN CRL.A.NO.340 OF 2002 DISMISSED. 8.4.2009 SD/- S.S.SATHEESACHANDRAN, JUDGE. S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.340 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 8th April, 2009 JUDGMENT Accused is the appellant. He was prosecuted for the offences punishable under Section 55 (a) and (i) of the Kerala Abkari Act (for short 'the Act'). He pleaded not guilty. The learned Sessions Judge, after trial, finding him guilty of both offences convicted him thereunder sentencing him to undergo rigorous imprisonment for one year and to pay a fine of Rs.One lakh with default term of rigorous imprisonment for six months, for each of the offences, directing him to undergo the sentences concurrently. Aggrieved by the conviction and sentence, he has preferred the appeal. 2. The prosecution case in brief is thus: P.W.1, the Excise Inspector, Chavakkad Excise Range with an excise party was engaged in patrol duty within the jurisdiction of his range on the evening of 11.6.1997. At about 6 P.M. while the excise party waited beside the road in front of the Milk Society, Peruvallur, the accused riding a scooter at enormous speed came towards them and, seeing the excise party, he stopped the vehicle and attempted to turn around and get away. He was intercepted and a search was carried over the vehicle and also his person. Four bottles of 750 ml. each and five Crl.A.No.340/02 - 2 - bottles of 180 ml. each of Indian made foreign liquor as kept in a polythene bag were found in the vehicle and the search over the person of the accused yielded two bottles of 180 ml. each as kept concealed. The bottles had no labels and were found to be illicit liquor. One bottle containing 180 ml. liquor was collected as sample and sealed. Sample and the rest of the bottles were seized into custody, preparing Ext.P1 mahazar. The accused arrested was later enlarged on bail. After completion of the investigation of the crime registered over the seizure of the contraband, charge was laid against the accused indicting him of the offences punishable under Section 55 (a) and (i) of the Act. 3. The accused, on appearance, pleaded not guilty when the charges were made known to him. Prosecution examined P.Ws.1 to 4, got marked Exts.P1 to P4 and identified M.O.1 series and M.O.2 to prove the indictment levelled against the accused. The accused questioned under Section 313 of the Cr.P.C. maintained his innocence and set up a defence case that the excise jeep colluded with his scooter on 25.2.1997 at Chavakkad leading to an altercation, and pursuant thereto the case had been falsely foisted against him. Though such a defence was canvassed, no evidence was adduced in Crl.A.No.340/02 - 3 - support thereof. 4. The learned Additional Sessions Judge, after appreciating the materials produced in the case, found that the prosecution had proved the indictment for both the offences levelled against the accused and that the defence version canvassed by him was unworthy of any credence. The accused was thereupon convicted and sentenced as indicated above. 5. I heard the learned counsel for the accused and also the learned Public Prosecutor. 6. The learned counsel for the accused assailed the conviction as unsustainable under law and facts contending that other than the evidence of the excise officials, there is no independent evidence to connect the accused with the grave charges indicted against him. The learned counsel submitted that it is unsafe to found a conviction on the uncorroborated version of the excise officials who detected the offence and later conducted investigation over the crime. The attestors to Ext.P1 mahazar, P.Ws.2 and 3, both of them, have turned hostile to the prosecution is highlighted by the learned counsel to contend that the prosecution case solely rested on the evidence of the excise officials against whom the accused had imputed ill-motive Crl.A.No.340/02 - 4 - and animosity setting up a defence the case had been falsely foisted pursuant to a collision of the excise jeep with his scooter. Even if the defence version is not supported by any material, in a case of this nature, it is submitted by the counsel, implicit reliance on the evidence of the excise officials is not possible and on their evidence alone, conviction cannot be entered against the accused. There was inordinate delay in production of the contraband seized before the court is another ground canvassed by the counsel to assail the prosecution case and also the conviction founded against the accused. Seizure of the contraband, according to the prosecution, was on 11.6.1997, but the contraband seized along with the sample collected reached the court only on 13.11.1997, for the delay of which no explanation was offered. Ext.P1 mahazar was produced before the court with the property list only on 13.11.1997 is also pointed out by the counsel. Sample produced was handover for analysis much later and reached the laboratory only on 27.3.1998, as evidenced by Ext.P4 report, submits the counsel. Prosecution was bound to explain the delay for production of the contraband and also satisfy that till production the residue and the sample collected were in safe custody lending assurance it was not tampered with. Other Crl.A.No.340/02 - 5 - than the statement of P.W.1, the Excise Inspector that the residue and the sample were kept at his office still production, there was no convincing explanation for the delay in production or any material to hold that it remained in safe custody untampered, submits the counsel. Such long delay in the production of the contraband when the accused is indicted of a grave offence, according to the learned counsel, is a serious illegality which vitiate the trial and, also the conviction entered against the accused. Whereas Ext.P1 mahazar would show that the liquor bottles seized were affixed with label and seal in Ext.P4 analysis report, there is no mention of any label seen as affixed over the sample bottle sent over for examination is commented upon by the learned counsel to impeach the prosecution case regarding the seizure of the contraband and collection of sample allegedly from the possession of the accused. The learned counsel invited my attention to the charges framed by the court below contending that there was no specific imputation that he had stored the contraband allegedly seized from his possession for sale and that being so, the conviction entered by the court under Section 55(i) of the Act, it is submitted, was per se unsustainable. Yet another challenge canvassed was that the contents of Ext.P4 were not put to Crl.A.No.340/02 - 6 - the accused when he was questioned under Section 313 of the Cr.P.C. and as such the finding under that report could not be used against the accused as an incriminating circumstance pointing to his guilt. In the light of the above serious infirmities in the prosecution evidence and illegalities in the seizure of the contraband, the learned counsel submits that the case set up against the accused is thoroughly vitiated and the conviction imposed against him is liable to be set aside. 7. I have perused the records of the case giving consideration to the submissions made by the learned counsel. I am afraid the challenges pressed into service by the learned counsel to impeach the conviction in the given facts of the case are not of any merit. So far as the attack made that the conviction is founded on the solitary testimonies of excise officials which without corroboration is not acceptable, it is needless to point out that corroboration is not a rule of law but one of prudence. The evidence of excise officials should receive same consideration as that of any other witness examined before the court. Other than setting up of a defence that the excise officials had some animosity towards the accused consequent to a collision of an excise jeep with his scooter, no material whatsoever Crl.A.No.340/02 - 7 - was produced even to show that there was collision of the vehicles as contended. The learned Sessions Judge who had the opportunity to watch the demeanour and deportment of the excise officials, P.Ws.1 and 4, who were involved in the seizure of the contraband for the possession of the accused, found their testimony trustworthy, credible and acceptable. Perusing their evidence, I find nothing has been brought out to doubt the intrinsic worth of their sworn testimony. I find the learned Sessions Judge was fully justified in relying upon the testimony of the excise officials, P.Ws.1 and 4 which had been corroborated by Ext.P1 mahazar, a contemporaneous record prepared over the seizure of the contraband to reach the conclusion that the accused carried on his person and vehicle the liquor bottles without any authority, as alleged by the prosecution. There was inordinate delay in production of the contraband before the court for which no explanation was offered by the prosecution is the next challenge pressed into service to assail the conviction. The delay in production of the contraband by itself will not affect the merit of the prosecution case. What prejudice, if any, had been caused to the accused by the delay deserve to be examined with reference to the totality of the proved facts and circumstances involved in the case. Crl.A.No.340/02 - 8 - Where it has been established by convincing legal evidence that the accused had kept in his possession the liquor bottles as alleged by the prosecution in the absence of any circumstance indicating that the delay in production of the contraband before the court had caused him prejudice, he cannot escape from the penal consequence arising from the abkari offence committed. When P.Ws.1 and 4 were examined, it is seen, the accused has not even suggested that any prejudice had been caused to him by the delay in production of the contraband. Evidently, after being satisfied that the contraband produced before the court remained untampered and was in safe custody, the sample collected and sealed from the contraband had been sentover through court for chemical analysis. Ext.P4 analysis report would also prima facie show that there was no tampering of the sample. After production of the contraband before the court, there was some delay in obtaining the analysis report from the laboratory, has to be appreciated in the backdrop that samples collected in cases involving abkari offences through out the State are sentover to the laboratory for analysis and report, which inevitably cause some delay in carrying out the analysis and furnishing of report before the court. At any rate, there is nothing on record nor even a Crl.A.No.340/02 - 9 - suggestion by the defence that any prejudice has been caused by the delay in production of the contraband and also getting the analysis report over the sample seized from the contraband. The label affixed over the sample and the residue could not be seen when the former was received at the laboratory and the latter at the time of examination of the excise officials, at the most, has got only innocuous value. So far as the non-mentioning of the label affixed over the sample in Ext.P4 report, the analyist is not expected to furnish every particular and description of the sample bottle in his report. He need only state his opinion and is expected to carry out the analysis after being satisfied that the seal affixed over the sample tallied with the sample seal forwarded, assuring that the sample had not been tampered with. Whether labels affixed over the liquor bottles covered by M.O.1 seal remained intact or lost, it is seen, the accused had not set forth any challenge that the bottles were not having the labels affixed when they were identified by the excise officials in the court. So, the analyst has not stated in Ext.P4 report the presence of a label in the sample does not indicate that no label was affixed in the sample. There is no merit in the challenge that the bottles were not affixed with labels as stated in Ext.P1 mahazar, Crl.A.No.340/02 - 10 - especially when no challenge thereof had been putforth to P.Ws.1 and 4 during their examination or any attention on that score was brought before the learned Sessions Judge during trial of the case. In the court charge framed against the accused, there was no specific imputation as to the storing of the contraband seized for sale had been highlighted by the counsel to impeach his conviction under Section 55(i) of the Abkari Act. The accused had no case that the contraband seized were intended for his personal consumption. The absence of a specific imputation of storage for sale or sale to sustain an offence under Section 55(i) of the Act in the court charge is not of much significance in the case where the accused had been prosecuted with specific allegation of keeping a large quantity of liquor, the contraband seized from his possession. A specific mention that he had “stored” the contraband for sale in the given facts of the case and also in the absence of any prejudice caused to him, for which there is nothing on record, is not material. The contents of Ext.P4 that the sample analysed contained ethyl alcohol 37.33 % by volume was not specifically put to the accused when he was questioned under Section 313 Cr.P.C. and as such Ext.P4 could not be relied upon by the prosecution to sustain its case was another challenge canvassed by Crl.A.No.340/02 - 11 - the learned counsel to assail his conviction. Considering the challenge raised by the counsel, I have suggested of extending an opportunity to the accused to seek his explanation on Ext.P4, if at all he suffered any injury by the failure of the trial judge in inviting his attention to the incriminating circumstance against him arising from the report. Learned counsel for the accused, then, declined to pursue the challenge on that basis. However, it has to be stated, apparently, by mistake, Ext.P4 report was referred to as a body mahazar report by the Sessions Judge when he questioned the accused under Section 313 Cr.P.C. The mistake had not been pointed out before the court either by the Prosecutor or the counsel for the accused, which is expected of from both of them. I do not think that any prejudice had been caused to the accused for the sole reason that a specific question on Ext.P4 analysis report was not put to him when he was questioned on the incriminating circumstances appearing in the prosecution evidence. Ext.P4 report had been admitted in evidence without any challenge. The accused had not disputed the correctness of the analysis conducted over the sample and also the conclusion reached by the analyst that the sample contained 37.33 % ethyl alcohol. The learned Sessions Judge has also held that there is Crl.A.No.340/02 - 12 - sufficient evidence apart from Ext.P4 to prove that the accused has transported illicit Indian made foreign liquor in his scooter. When that conclusion formed by the Sessions Judge is found to be fully supported by the legal evidence tendered in the case, I do not find any merit in the challenge raised that Ext.P4 was not specifically adverted to when the accused was questioned under Section 313 Cr.P.C. At any rate, the opportunity extended to the accused to offer explanation, if so desired, to give any explanation with reference to Ext.P4 report was declined, indicting that the challenge so raised at the most has got only academic value and it does not in any way affect the conviction imputed against the accused. The learned Sessions Judge had convicted the accused both under Sections 55(a) and 55(i) of the Abkari Act. True, the possession of the large quantity of illicit liquor bottles in his vehicle and also on his person may amount to storing of liquor for sale. But, in the given facts of the case what was involved was transportation of illicit liquor and, as such the charge under Section 55(a) of the Abkari Act alone is applicable and not under Section 55(i) of the Abkari Act as there is no convincing material that the quantity possessed was stored for sale. So much so, sustaining the conviction of the accused under Section 55(a) of the Crl.A.No.340/02 - 13 - Abkari Act, the conviction under Section 55(i) of the Act is set aside. 8. The learned Sessions Judge convicting the accused under Section 55(a) and 55(i) of the Abkari Act had sentenced him to imprisonment for one year and fine of Rs.One lakh each for both the offences, directing him to undergo the sentence concurrently. Default term of six months imprisonment in respect of non-payment of fine for each offence has also been provided separately. Sentence imposed for the offence under Section 55(i) of the Abkari Act has to be set aside as I have already held that the conviction under that offence is unsustainable, and, accordingly it is set aside. So far as the sentence imposed for the offence under Section 55(a) of the Abkari Act it is found to be only just and reasonable, and it does not warrant any interference. However, it has to be pointed out that the learned Sessions Judge in directing the sentences to run concurrently overlooked that only substantive term of imprisonment imposed for various offence alone can run concurrently, and, fine, if any, imposed for such offences and the default term thereof cannot be allowed to run concurrently. Section 31 of the Cr.P.C. permits only the sentence of substantive term of imprisonment to run concurrently. Since I have set aside the conviction and sentence under Section 55(i) of the Crl.A.No.340/02 - 14 - Abkari Act, the direction passed by the learned Sessions Judge that the sentence will run concurrently is not of any concern at this stage. Conviction and sentence imposed against the accused under Section 55(a) of the Abkari Act by the court below is confirmed. He is acquitted of the offence charged under Section 55(i) of the Abkari Act setting aside the conviction and sentence imposed for that offence by the court below. The appeal is partly allowed. srd S.S. SATHEESACHANDRAN, JUDGE