IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN TUESDAY, THE 13TH DAY OF DECEMBER 2011/22ND AGRAHAYANA 1933 CRL.A.No. 1471 OF 2003 SC.24/2000 OF ADDL. SESSIONS COURT (ADHOC), KALPETTA APPELLANT/ACCUSED: JOSE, S/O. JOSEPH, KOLLAMKUNNEL HOUSE, MUPPAINADU, PADIVAYAL, VADUVAMCHAL, WAYANADU. BY ADV. SRI.LALGI.P.THOMAS RESPONDENT/COMPLAINANT: STATE OF KERALA, REPRESENTED BY ITS DIRECTOR OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. S. HYMA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-12-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.S. GOPINATHAN, J. = = = = = = = = = = = CRL. APPEAL 1471 OF 2003 = = = = = = = = = = = = = DATED THIS, THE 13th DAY OF DECEMBER, 2011. J U D G M E N T The Additional Sessions Judge (Adhoc) Kalpetta in S.C. 24/2000 on his file 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 Rupees one lakh with a default sentence of simple imprisonment for three months. Assailing the above conviction and sentence, this appeal is filed. 2. The brief facts leading to the case are as follows: On 24.1.1999 at 7.45 p.m., PW.5, the then Sub Inspector of Police, Kalpetta Police Station got an information over phone that a person is selling arrack near the Government College, Kalpetta. PW.5, along with PW.4, the then Assistant Sub Inspector, rushed to the spot and found that the appellant was walking with a ten litre capacity jerry can which was marked as M.O.1. The appellant was intercepted and the contents in M.O.1 was examined. It was convinced that M.O.1 contained five litres of illicit arrack. Therefore, the appellant was arrested and M.O.1 was seized. From the liquid, samples were taken in three sample bottles. The appellant had a glass (M.O.2) kept Crl. A. 1471/2003 2 at the folds of his dhoti. That was also seized. Ext.P2 seizure mahazar, wherein PWs 1 and 2, two watchmen attached to the Government College Kalpetta, are attestors, was prepared. The investigation was taken over by PW.6, the Additional Sub Inspector, who after completing the investigation, submitted the charge sheet before the Chief Judicial Magistrate, Kalpetta alleging offence under Section 55(a) of the Abkari Act. Finding that the offence alleged is triable by a Court of Session, by order dated 9.12.1999 the case was committed to the Court of Session from where it was made over to the Additional Sessions Judge. 3. Responding to the process issued, the appellant who was later released on bail, entered appearance. After hearing the prosecution and the appellant, a charge for the above said offence was framed. When read over and explained, the appellant pleaded not guilty. Therefore, he was sent for trial. PWs 1 to 6 were examined. Exts.P1 to P5 and M.Os 1 and 2 were marked. After closing the evidence for the prosecution, the appellant was questioned under Section 313(1)(b) of the Code of Criminal procedure. The appellant took a defence of total denial. Though he was called upon to enter his defence no defence evidence was let in. The learned Additional Sessions Judge, on appraisal of the evidence, arrived at a conclusion of guilt consequent to which the conviction and sentence under challenge. Crl. A. 1471/2003 3 4. I have heard Advocate Sri. Lalji P. Thomas, the learned counsel appearing for the appellant and Smt. S. Hyma, the learned Public prosecutor. Perused the judgment under challenge and the evidence on record. 5. PWs 1 and 2 who are the attestors to Ext.P1 seizure mahazar did not support the prosecution. Though they were cross examined by the learned Public prosecutor after obtaining permission, no material was disclosed in support of the prosecution. PW.3 is only an attestor to Ext.P1 scene mahazar prepared by PW.6 on 25.1.1999. In support of the prosecution case there is the oral testimony of PW.4, the Assistant Sub Inspector and PW.5, the Sub Inspector. They would harmoniously depose that on 24.1.1999 on getting information that arrack was being sold near the Government College, Kalpetta, they rushed to the spot and found the appellant walking with M.O.1 jerry can. The appellant was intercepted and the contents in M.O.1 was tested. On finding that it was containing five litres of country liquor, the same was seized for which Ext.P2 seizure mahazar was prepared. The appellant had a glass inside the folds of his dhoti. It was also seized. PWs 4 and 5 had identified M.O.2 as the glass seized. Since PWs 1 and 2 did not support the prosecution case, I had a careful scrutiny of the evidence of PWs 4 and 5. Little material is disclosed Crl. A. 1471/2003 4 to disbelieve them. Learned counsel for the appellant would argue that there is violation of Section 36 of the Abkari Act in conducting search. So also, before ascertaining the true nature of the liquid the appellant was arrested. It would indicate that the investigating officer was prejudiced. It was further argued that there is delay in forwarding the sample to the court. Therefore, there is every likelihood of tampering with the material objects and for that reason the appellant is entitled to an order of acquittal. 6. Since PWs 1 and 2 are attestors to Ext.P2, though they turned hostile, I find that there is substantive compliance of Section 36 which mandates that the procedure for search as per the Code of Criminal Procedure is to be followed. The mere fact that the attestors turned hostile is not at all a reason to reject the seizure. Neither it would affect the evidentiary value of the materials searched out in the search. Going by Section 41(1) and (2) of the Code of Criminal Procedure, I find that the police officer is entitled to arrest a person in case he has reasonable suspicion that the person had committed a cognizable offence. In this case, PW.5 need not have waited to arrest the appellant till a report from the Chemical Examiner is obtained. A reading of Section 41 would be relevant for the correct appraisal of the case. Section 41 reads as follows: Crl. A. 1471/2003 5 Section 41: “When police may arrest without warrant.-- (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person -- (a) who commits, in the presence of a police officer, a cognizable offence; (b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely,-- (i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence; (ii) the police officer is satisfied that such arrest is necessary -- (a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence; or ( c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or (d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or (e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, Crl. A. 1471/2003 6 and the police officer shall record while making such arrest, his reasons in writing.] (ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment or a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;] ( c) who has been proclaimed as an offender either under this Code or by order of the State Government; or (d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or (e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or (f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or (g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or (h) who, being a released convict, commits a breach of any rule made under sub-section (5) of Section 356; or Crl. A. 1471/2003 7 (i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the persons might lawfully be arrested without a warrant by the officer who issued the requisition. (2) Subject to the provisions of Section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.] 7. The evidence of PWs 4 and 5 would show that the appellant was arrested on satisfying that the liquid contained in M.O.1 was country liquor. Therefore, in the light of the above provision, I find no illegality committed by PW.5 in arresting the appellant. In the event PW.5 waited for obtaining report from the Chemical, Examiner to arrest the appellant, in the meanwhile, the appellant would have escaped from the clutches of law. Therefore, there is no illegality in arresting the appellant and there is nothing to conclude that the investigating officer was anyway prejudiced.. 8. The evidence of PWs 5 and 6 would show that on 25.1.1999, PW.5 had kept the material objects and the sample bottle in his possession for the purpose of investigation. PW.6 had in unambiguous terms stated Crl. A. 1471/2003 8 that PW.5 was questioned by him on 25.1.1999. It was also deposed by PW.6 that on the next day, being Republic Day, was a holiday and on 27.1.1999 the material objects were produced before the court. The evidence of PWs 5 and 6 would show that they had well explained the delay of three days in producing the material objects before the committal court. Further, the evidence of PW.5 would show that the material objects were in his safe custody till produced before the court. Though it was suggested to PW 4 that there was tampering he denied the same. PW.5 is consistent that the sample bottles were sealed then and there. That evidence of PW.5 is corroborated by Ext.P2. A look at Ext.P5 would show that the sample bottles were sealed and that the seals were in tact. In Ext.P5, it is further certified that the samples contained 81.95 % by volume of ethyl alcohol. The evidence of PW.1 that on examination, he satisfied that the liquid contained in M.O.1 was country arrack is corroborated by Ext.P5 report. I find no reason to reject the evidence of PW.5 or Ext.P5. The court below had correctly appreciated the evidence on record and rightly come to the conclusion of guilt. The conviction under challenge is based upon cogent evidence and is unassailable. Though the appellant deserves no leniency, taking into account that the quantity of the contraband seized is only five litres, I find that the substantive sentence can be reduced to nine months. Crl. A. 1471/2003 9 The fine imposed is the minimum prescribed by the statute and requires no interference. In the result, the appeal is allowed in part. While confirming the conviction, the substantive sentence is reduced to rigorous imprisonment for nine months. The fine imposed by the trial court is sustained with default sentence. P.S. GOPINATHAN, (JUDGE) knc/-