IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 CRL.A.No. 569 of 2002() -------------------------------- (AGAINST JUDGMENT IN S.C.NO. 473/2001 OF THE COURT OF III ADDITIONAL SESSIONS JUDGE(ADHOC) FAST TRACK COURT NO.I, THRISSUR DATED 3.7.2002) APPELLANT: ---------------------- VASAPPAN @ RAJAN, S/O.SANKARAN, KONDAHI VILLAGE, MAYANNUR DESOM. BY ADVS. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT: ---------------------- STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ln M.N.KRISHNAN, J. ------------------------- CRL.A.NO. 569 OF 2002 ------------------------------------- Dated this the 25th day of June, 2009. J U D G M E N T This is an appeal preferred against the conviction and sentence passed in S.C. 473/01 of the Third Additional Sessions Judge (Adhoc) Fast Track Court No.1, Trissur. The accused was found guilty under section 55(a) and 58 of the Abkari Act and sentenced to undergo Rigorous imprisonment for one year and to pay a fine of Rs. 1,00,000/-and in default to undergo Rigorous Imprisonment for 3 months for the offence under section 55 (a) of the Abkari Act. The same sentence is awarded for the offence under section 58 of the Abkari Act and sentences were directed to run concurrently and set off was allowed under section 428 of the Cr.P.C. Against the said decision the accused has come up in the appeal: Thre points that arise for determination are: 1. Whether the court below was right in CRA. No. 569/2002. 2 conviction of the appellant on the materials available before it ? 2. In case of guilt, is the punishment is excessive ? 2. Points 1 and 2:- It is the definite case of the prosecution that on 20.10.1998 at about 5.30 p.m. at the northern side of the Cheerakuzhi Canal bridge in Mayannur Desom,the accused was found in possession of about 2.50 litres of iilicit arrack in a plastic can of 5 litres and thereby committed offence under the provisions of the Act. Pws 1 to 7 were examined Exts. P1 to P11 and MO.1 were marked. The learned counsel for the appellant would submit that the evidence adduced is not sufficient and that prejudice has been caused to the accused for the reason that the Chemical Examiner's report has been marked even without examining the person. The forwarding note was also marked without giving sufficient opportunities to the accused. Let me first consider about the factual aspects. CRA. No. 569/2002. 3 PW1 is the preventive officer of the Excise Range who had made the detection. He had deposed before the court that while they were proceeding in a Jeep, they found the accused in possession of a 5 litre plastic can. He was apprehended, the can was examined which revealed that there were 2.50 litres of liquid arrack in the can. It was identified by taste and smell. The witnesses were appraised of the situation, sample was taken and sealed. The can was also sealed and produced before the court. In the cross- examination he had deposed that he is familiar with the area and that he had parked the jeep at a distance and accused was found about 10 metres away and he did not attempt to run. Nothing has been brought to discredit the evidence regarding these facts. Pws 2 and 3 are the two independent witnesses who as usual had turned hostile to the prosecution. PW4 was the Excise Guard who had accompanied PW1 on the date of detection. He had also spoken about the arrest, seizure and sampling and sealing as spoken to by PW1. He had also identified the material CRA. No. 569/2002. 4 objects. He also specifically speaks about the sealing process. He had denied the suggestions that it is a false case. PW5 is the Village Officer who had prepared the sketch and PW6 is the person who had completed the investigation and laid the charge. PW7 was later examined to mark the forwarding note as Ext.P11. Exts. P10 and P11 are the chemical examiner's report as well as the forwarding note. So far as the apprehension of the accused is concerned with the contraband liquor, the evidence of the official witnesses which had stood the scrutiny of meticulous examination would establish that it is acceptable and reliable. It cannot be brushed aside on the ground that they may be interested in the prosecution of the accused. It is the settled position of law by this court, as well as the Apex Court. Their evidence requires meticulous scrutiny before acceptance. 3. Now so far as, the production of the contraband liquor is concerned, I had perused the records and I find that Ext.P7 is the list of thondi articles which take in a 5 CRA. No. 569/2002. 5 litre plastic can with about 2.32 litres of arrack and a sample bottle of 180ml sealed. It had been produced before the court on 21.10.1998,that is on the very next day of the seizure and arrest of the accused. It is also to be stated that such seized articles were before this court. The correctness of the same should have been verified by the court before receiving it. It has to be held that the sample and reminder of the liquid was received by the court immediately on the next day of the alleged seizure in a sealed condition which did not raise any apprehension in the mind of the court regarding the correctness of the same. 4. The learned counsel has argued before me that the Chemical Examiner's report was not even marked when the evidence was going on, but at a later stage it was produced and marked. 5. Though the learned counsel who appeared in the lower court raised objection regarding the same the court even without examination had marked the certificate as CRA. No. 569/2002. 6 Ext.P10. A report submitted by a Chemical Examiner's is admissible in evidence without examining the maker of the report. Just because the police or Excise Officer who had received it and produced before the court is not examined it cannot be stated it has caused prejudice to the accused. It is a Chemical Examiner's report and therefore non- examination of a person to mark the document cannot be considered as vital to the case of the prosecution. Similarly the forwarding note was also produced at a very belated stage that is after the first 313 Cr.P.C.examination over. The prosecuting agency should have been more careful in these type of matters as it affects the freedom of a person. But at the same time the minor laches on the officers shall not be a ground to acquit the accused unless the court is satisfied that it has caused prejudice. Anyway,it has to be stated that the material aspects are produced as early as on 21.10.1998 and it has been sent for Chemical Examination. This sealed bottle has been sent for chemical examination by the court on the basis of request of the CRA. No. 569/2002. 7 investigation agency. Now the reference of the Chemical Examiner's report also would show that the seal was intact. I may refer to the decision of the Apex court reported in 2008 S.C 436 Raveendran Vs. State of Kerala wherein the court had relied upon the act of the courts below. It is stated therein that the sample were produced on 6.8.1999 and till they were in safe custody. The letter of the Magistrate shows that the articles were produced before him they were packed and sealed. One has to give credential to the act done by the authorities under law. Therefore, the mere belated production of the forwarding note has not caused any rupture to the defence or prejudice to the defence. But it is always desirable they are done at the earliest. It cannot be a sole ground for rejecting the case of the prosecution. The evidence of Excise Officials indicate about the proper search and seizure and recovery of the contraband liquor and producing it before the court in time and sending it for a Chemical Examination. Later it the Chemical Analysist report is CRA. No. 569/2002. 8 received which shows that is a contraband liquor. 6. Then the learned counsel would contend that section 55(a) of the Abkari Act will not apply. There is some force in the said contention for the reason 55(a) of the Abkari Act deals with export, import, transit or possess on and that possession must be in the course of illegal transit. There is no such case that the accused were found, exporting or importing or transporting. But so far as section 58 Abkari Act is concerned possession is sufficient to attract offence, but possession must be a conscious possession. A person knowing to be illicit contraband liquor possessing it in a public place he has got the knowledge that he is possessing it with some purpose. It has to be stated that conscious possession is not a matter that can be proved by direct evidence. Just like the element of fraud, it is something which has to be inferred and found from the materials available and the surrounding circumstances. A person is not expected to keep illicit arrack at all comes into possession of the same and is seen with the same in a CRA. No. 569/2002. 9 public place and over and above section 64 of the Abkari Act also puts burden on the accused to prove or explain regarding nature of his possession. The defence is of total denial. Therefore the evidence indicates only in one direction as to conscious possession. So far as the quantum is concerned the liquid in possession was 2.50 litres for which the learned judge had imposed a punishment for one year and to pay a fine of Rs.1,00,000/- and in default to undergo further imprisonment for 3 months. While answering section 313 question it was revealed that he has to lookafter a big family and considering the attending circumstances I am inclined to reduce the sentence to 3 months and reduce default sentence to one month. To this extent the sentence stands modified. In the result, the criminal appeal is disposed of as follows: 1. The finding of guilt under section 55(a) of the Abkari Act is set aside and the accused is acquitted of the offence. CRA. No. 569/2002. 10 2. The finding of the guilt u/s. 58 of the Abkari Act is confirmed. 3. The accused is sentenced to undergo simple imprisonment for a period of 3 months and to pay a fine of Rs. 1,00,000/- u/s. 58 of the Abkari Act and in default of payment of fine to undergo simple imprisonment for a further period of one month. The accused is entitled to set off as contemplated u/s. 428 Cr.P.C. The lower court shall execute the sentence. M.N.KRISHNAN, JUDGE ln. CRA. No. 569/2002. 11 M.N.KRISHNAN,J. CRA.No. 569/2002 J U D G M E NT 25th June, 2009