IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN WEDNESDAY, THE 21ST DAY OF DECEMBER 2011/30TH AGRAHAYANA 1933 CRL.A.No. 352 of 2004 (C) ------------------------- SC.124/2001 of ADDL.SESSIONS COURT, FAST TRACK (ADHOC)-II, ALAPPUZHA APPELLANT/1ST ACCUSED:: ------------------------- ANIL, AGED 27, S/O. VIJAYAN, MELETHUNDIYIL VEEDU, LAHASSERI MURI CHENGANNUR VILLAGE. BY ADV. SRI.BABU CHERUKARA RESPONDENT(S)/COMPLAINANT:: --------------------------- STATE, REPRESENTED BY THE EXCISE INSPECTOR, CHENGANNUR BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P.SRI.REJI JOSEPH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-12-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 'CR' P.S.GOPINATHAN, J. ------------------------------ Crl.A. No. 352 OF 2004 -------------------------------- Dated this the 21st day of December, 2011 J U D G M E N T ~~~~~~~ The Additional Sessions Judge (Adhoc -II), Alappuzha in Sessions Case No.124/2001, by judgment dated 30.1.2004 convicted the appellant for offence under Section 55(a) of the Abkari Act and sentenced to rigorous imprisonment for one year and a fine of Rs. One lakh with a default sentence of rigorous imprisonment for six months. In the preface of the impugned judgment, section of offence is misquoted as 55(i). Assailing the above conviction and sentence, this appeal is preferred. 2. The prosecution case is that, on 7.12.1998 at 8.30 p.m., while PW4, a Preventive Officer attached to the Chengannur Excise Range, moving on patrol duty along with PW5, a Guard and others, found the appellant coming across with a plastic bottle which was marked as MO1. Suspecting that the bottle contained some contraband liquid the appellant was intercepted and the contents in MO1 was tested by smell and taste. It was convinced that MO1 having a capacity of 1½ Crl.A.No.352/2004 2 litres contained full of illicit arrack. The appellant was arrested and MO1 was seized for which Ext.P3 seizure mahazar, wherein PWs 2 and 3 are attestors, was prepared. 180ml was taken as sample in three bottles. MO1 was sealed with balance quantity of the liquor. Sample bottles were also sealed. The appellant was taken to the office and produced before PW1, the then Excise Inspector. PW1 produced the appellant along with material objects and sample bottles before the local Magistrate. PW1 was succeeded by PW6, who completed the investigation and laid the charge sheet before the Judicial Magistrate of the 1st Class-II, Chengannur alleging offences under Sections 55(a) and 55(i) of the Abkari Act. 3. On finding that the offences alleged are exclusively triable by a court of session, the case was committed to the court of Session, Alappuzha, fromwhere it was made over to the Additional Sessions Judge. The appellant, who was arrested on the spot was later released on bail. Responding to the process issued by the Additional Sessions Judge, the appellant entered appearance. After hearing either side, a charge for offence Crl.A.No.352/2004 3 under Section 55(a) of the Abkari Act was framed. When read and explained, the appellant pleaded not guilty. Therefore, he was sent for trial. On the side of the prosecution, PWs 1 to 6 were examined. Exts.P1 to P3 and MOs 1 to 3 were marked. After closing the evidence for the prosecution, the appellant was questioned under Section 313(1)(b) of the Code of Criminal Procedure. Appellant took a defence of total denial. No defence evidence was let in. On appraisal of the evidence, the additional Sessions Judge arrived at a conclusion of guilt. Consequently, the appellant was convicted and sentenced, assailing which, this appeal is preferred. 4. I have heard Adv.Sri.P.A.Salim, the learned counsel appearing for the appellant and Sri.Reji Joseph, the learned Government Pleader. Perused the judgment impugned and the evidence on record. 5. PWs 4 and 5 had given corroborating evidence. They would depose that, on 7.12.1998, while they were moving on patrol duty along the road in front of the house of one Asok Crl.A.No.352/2004 4 Kumar, the appellant was found coming across with MO1 plastic bottle in his hand. Having got suspected, the appellant was intercepted and the contents in MO1 was tested by smell and taste, whereupon it was convinced that MO1 contained one and a half litres of arrack. The appellant was arrested. MO1 with the arrack was seized for which Ext.P3 seizure mahazar was prepared. Sample was taken in three bottles of 180ml capacity. One bottle was sent for analysis. MOs 2 and 3 were identified as the other two parts of the sample. They would further depose that the appellant along with the material objects were produced before PW1, the Excise Inspector. PW1, the Excise Inspector, would depose that the appellant along with the material objects were produced before him. He, in turn produced the appellant as well as the material objects before the the local Magistrate, fromwhere one of the sample bottle was sent for chemical examination. After examination, by Ext.P2, the Chemical Examiner had reported that the sample contained 45.06% by volume of Ethyl Alcohol. The investigation was conducted by PW6 who succeeded PW1. PW6 had given evidence supporting the evidence adduced by PW1. PWs 2 and 3 are attestors to Crl.A.No.352/2004 5 Ext.P3 seizure mahazar. They denied of having witnessed the arrest or seizure. They even denied the signature in Ext.P3. Since PWs 2 and 3 turned hostile, I had a critical scrutiny of the evidence of PWs 4 and 5. Though they were subjected to searching cross examination no material was disclosed to disbelieve them. There is no suggestion that PWs 4 and 5 had got any axe to grind against the appellant or that the appellant was falsely implicated with any ulterior motive. To PW5, it was suggested that the appellant was a driver by profession and since he refused to heed the request of the Excise authorities to run the vehicle for the Excise Department he was falsely implicated. PW5 would deny the same. It is curious to note that to PW4, there is no such suggestion. There is also no suggestion either to PW1 or PW6. Therefore, it appears that it is only an experimental defence put forward after the cross examination of PWs 1 to 4. The appellant when questioned under Section 313(1)(b) of the Code of Criminal Procedure has also no case that the appellant was a driver or that he refused to go for running the vehicle as requested by the Excise Department or because of that refusal the appellant was falsely implicated. Crl.A.No.352/2004 6 Therefore, that contention is devoid of merit and is not at all sufficient to disbelieve PWs 4 and 5. After carefully going through the evidence of PWs 4 and 5, I concur with the findings of the learned Additional Sessions Judge that they are credible witnesses. Their evidence regarding the seizure of MO1 with liquid is corroborated by Ext.P3. Therefore, I believe the prosecution case regarding the recovery of MO1. Ext.P2 report of the Chemical Examiner would show that the sample was forwarded for chemical examination and it was received in the laboratory on 1.1.1999. The seal was intact and tallied with the specimen impression of the seal. As per Ext.P2, the sample contained 45.06% by volume of Ethyl Alcohol. The appellant has no case that he has procured the liquor by any lawful means or that that it is Indian Made Foreign Liquor. Therefore, what can be concluded is that the liquid contained in MO1 is nothing but arrack which the appellant procured illicitely. 6. Canvassing by attention to Section 8(i) and (ii), 55(a) and 55(i) and relying upon the decisions reported in Krishna Pillai Vasu Pillai v. State [1956 KLT 30] and Santosh Kumari V. Crl.A.No.352/2004 7 State of J & K [AIR 2011 SC 3402], the learned counsel would argue that by the allegation in the chargesheet only an offence under Section 8(i) and (ii) is made out and no offence under Section 55(a) or 55(i) of the Abkari Act is made out. Since the very case of the prosecution is that the liquid contained in MO1 is the country arrack, I find merit in the submission made by the learned counsel for the appellant that only an offence under Section 8(i) and (ii) of the Abkari Act is made out by the allegations against the appellant. 7. The learned counsel further argued that since the charge was framed for a wrong section, the appellant was prejudiced in the sense, that he could not properly understand the charge and to defend the case. Going by the final report submitted by PW6, there is no error in the facts stated, but only the Section of offence is misquoted. That means, the appellant faced the trial knowing that he was being prosecuted for possessing 1½ litres of illicit arrack. It is crucial to note that the appellant has not pleaded for discharge under Section 227 of the Code of Criminal Procedure. Before the trial court there was no Crl.A.No.352/2004 8 case that the charge was wrongly framed. If the allegations in the final report didn't disclose any offence, appellant ought to have pleaded for discharge. That means appellant was aware that the allegations are there to face the trial, though section is misquoted. He didn't raise the issue. Accordingly charge was framed. Such being the facts on record, the error or omission in the charge to specify section 8(i) and (ii) is not at all a reason to interfere with the conviction, as such error is not at all a material error vitiating the trial. A reading of Section 215 of the Code of Criminal Procedure would be relevant for easy appraisal of the dispute. “215. Effect of errors:- No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.” Provision is crystal clear and answers the issue in favour of the prosecution. In view of Section 215 of the Code of Crl.A.No.352/2004 9 Criminal Procedure, the argument advanced by the learned counsel is devoid of merits. Though it was argued that there occasioned failure of justice and the appellant was prejudiced, the learned counsel could not mention as to how it occurred. It is also crucial to note that such a ground was not at all raised in the appeal memorandum. Therefore, I find that the omission to state the correct penal provision in the charge is not at all relevant to interfere with the finding of the trial court. 8. Reading the evidence of PW6 repeatedly and relying upon the decision reported in Bodh Raj v. State of J & K [AIR 2002 (SC) 3164], it was argued by the learned counsel for the appellant that PW6 started investigation only on 28.5.2000 and that the benefit of the delay should be given to the appellant. Going by the cross examination of PW6, though at the first stretch PW6 had stated that there was no specific reason for the delay in submitting the chargesheet, when cross examined by the 2nd accused he would depose that he had been taking one case after another. That means, the delay in filing the chargesheet was because of the arrears. In this juncture, it is Crl.A.No.352/2004 10 pertinent to note that the sample was forwarded to the Magistrate within 24 hours and without much delay the sample was forwarded to the Chemical Examiner who, obtained the same on 1.1.2009. Therefore, even if there is delay in filing the chargesheet, there is no occasion to cause failure of justice. Appellant was no way prejudiced because of the delay in filing the chargesheet. Therefore, the appellant is not entitled to be exonerated on ground of delay. Argument on that count is without merit. In the above circumstance, I find that the conviction entered by the trial court is to be converted to one under Section 8(i) and (ii) of the Abkari Act instead of Section 55(a). 9. Regarding the sentence, the learned counsel argued for confining the substantive sentence to the under trial imprisonment already undergone, I find that the very prosecution case is that the appellant had been purchasing spirit from the 2nd accused, who was acquitted by the trial court and selling the same. High percentage of Ethyl Alcohol probablises the allegation. In this view of the matter, the appellant doesn't Crl.A.No.352/2004 11 deserve any leniency. However, taking note that the quantity involved is only 1½ litres, the appellant was an Electrician then stated to be aged 37 years and that there is no report regarding any bad antecedent or any subsequent involvement in identical crime, I find that the appellant is entitled to a little leniency in sentence and that a substantive sentence of rigorous imprisonment for six months with the minimum fine imposed by the trial court would meet the ends of justice. 10. In the result, the appeal is allowed in part. While setting aside the conviction under Section 55(a), the appellant is convicted for offence under Section 8(i) and (ii) of the Abkari Act. The substantive sentence under challenge is reduced to rigorous imprisonment for six months. The minimum fine imposed by the trial court with the default sentence is sustained. The trial court shall see the execution of sentence and report compliance. Under trial imprisonment, if any, shall be set off. (P.S.GOPINATHAN, JUDGE) ps/22/12