IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 25TH AUGUST 2011 / 3RD BHADRA 1933 CRL.A.No. 653 of 2003() ----------------------------------- SC.NO. 268/2000 of ADDL.SESSIONS COURT(ADHOC-II) KASARAGOD .................... APPELLANT(S)/ ACCUSED --------------------------------------- K.JAYA, AGED 67 YEARS, W/O.LATE VELAYUDHAN, KAITHAKKAD COLONY, CHERUVATHUR VILLAGE. BY ADV. SRI.M.THAMBAN SMT.T.SUDHAMANI RESPONDENT(S)/ COMPLAINANT & STATE --------------------------------------------------------------- 1. THE STATION HOUSE OFFICER, CHANDERA POLICE STATION. 2. THE STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 & R2 BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts N.K.BALAKRISHNAN, J. -------------------------------- Crl.A.No.653 of 2003 ----------------------------- Dated this the 25th day of August 2011 J U D G M E N T The appellant was convicted by the Addl. Sessions Judge (Adhoc-II), Kasargod for offence punishable under Sec.55(a) of Abkari Act and she was sentenced to undergo R.I. for one year and fine of Rs.1 lakh in default of payment of which she was directed to undergo R.I. for two months. This appeal is directed against that conviction and sentence. 2. The case of the prosecution is that on 3.6.1999, PW4, Sub Inspector of Police was on patrol duty near railway station Cheruvathur. At about 10.30 PM he got reliable information that the accused-woman was transporting Karnataka made arrack packets and accordingly the police men proceeded to the railway station at about 11.05 PM. When PW4 and others reached near the Crl.A.No.653 of 2003 -: 2 :- railway gate they saw the accused carrying in her possession arrack packets. She was intercepted. The packets were examined. There were altogether 80 packets of Karnataka made arrack, each packet containing 100 ml. Since it was an illegal transportation, she was arrested. Since it was odd hours, her son alone could be intimated. He reached there. Arrest memo was signed by the accused and her son. From six such packets, two sample bottles of 375ml each were prepared. Those sample bottles were packed and sealed. All the properties were seized as per Ext.P1 seizure mahazar. Ext.P4 is the F.I.R. prepared by PW4. After conducting investigation, the charge sheet was laid against the accused. She pleaded not guilty. 3. PWs.1 to 4 were examined and Exts.P1 to P8 were marked. MO1 series to MO5 were marked. The accused contended that it was a false case. Exts.D1 and D2 were marked on the side of the defence. 4. The learned Addl. Sessions Judge after analysing Crl.A.No.653 of 2003 -: 3 :- the evidence found the prosecution case true, convicted and sentenced as mentioned above. 5. The learned counsel for the appellant would submit that two independent witnesses to Ext.P1 seizure mahazar were actually accused in other abkari cases and so that itself will show the falsity of the prosecution case. Those two witnesses did not support the prosecution but chose to shift their loyalty to the accused. It is important to note that the detection was at 11.05 PM and so it would be difficult for the police officials to get independent witnesses at that particular point of time. 6. It is also argued by the learned counsel for the accused that there were other cases registered by the police on the same day, in support of which Exts.D1 and D2 were pressed in the service. The detection of those two cases did take place after the detection of this case. The attempt made by the defence was that it was practically impossible for PW4 to reach the place of incident mentioned Crl.A.No.653 of 2003 -: 4 :- in the crimes referred to in Exts.D1 and D2 and so there is improbability in the case put forward by PW4 as to the time, place and seizure referred to earlier. It is pertinent to note that in Exts.D1 and D2 also the place of occurrence is near Cheruvathur railway gate, which is very near to the place of incident mentioned in this case. The detection in that case took place after some time. The police officers or excise officers may not be in a position to remember the exact time, place and manner of detection of each case when they are asked to say from memory the particulars of those cases especially when they are examined in another case. It is not the memory power or erudition of the witnesses that assumes relevance to test the credibility or otherwise of the witnesses. That apart, so far as the case on hand is concerned, the fact that another case was detected by PW4 on the same date at a particular time would assume no relevance at all. 7. The evidence regarding the arrest and seizure as Crl.A.No.653 of 2003 -: 5 :- deposed by PWs.1 and 4 was assailed by the learned counsel for the appellant stating that they are interested in the success of the prosecution. I find no force in that submission. They were discharging their official duties. There is a contemporaneous record, Ext.P1 seizure mahazar, which contains the details of the arrest of the accused and seizure of the contraband articles. Ext.P4, the F.I.R. was promptly registered. Besides there is also Ext.P3 arrest memo prepared for the arrest of the accused then and there. The evidence given by PWs.1 and 4 that the accused was found in possession of 80 packets of Karnataka made liquor of 100 ml each samples were taken in two bottles could not be seriously attacked by the defence. The evidence was thus rightly accepted by the learned Sessions Judge. 8. The next question is whether there was delay in production of the balance 74 packets and the sample bottles before the court. All the 74 packets which were identified Crl.A.No.653 of 2003 -: 6 :- as MO1 series were produced before the court as per Ext.P5 property list. The learned counsel for the accused would submit that though the detection was on 3.6.1999 the properties reached the court only on 4.6.1999 and there is no acceptable explanation for the delay caused in producing those articles. The accused was arrested at the spot. The seizure mahazar and the F.I.R. reached the court on 4.6.1999 itself. There is a detailed description of the properties seized, in Ext.P1 mahazar. Ext.P5 is the property list in which two sample bottles were shown as item No.4 which was shown to have been in a sealed condition. There was no case for the defence that prior to the production of the sample bottles and 74 packets any tampering was done. It was described as against item No.1 as 74 packets; the seals of Karnataka Sarkar were seen on all the packets and that it was written in Kannada language. Therefore, there is nothing to doubt the genuineness of the properties or the sample packets produced in court. Since the seizure Crl.A.No.653 of 2003 -: 7 :- mahazar reached the court on the next day itself there was no violation of Sec.36 of the Abkari Act. 9. Ext.P8 is the report of the chemical examiner which shows that the sample contained ethyl alcohol. Since the evidence would show that the accused was transporting 80 packets of Karnataka made liquor, the offence would certainly fall under Sec.55(a) of the Act. Therefore, the finding entered by the learned Addl. Sessions Judge that the accused is guilty of the offence punishable under Sec.55(a) of the Act is only to be confirmed. 10. The learned counsel for the accused/appellant would submit that in 2003 when the appeal was filed she was aged 67 years and now she has crossed 74 years and so leniency may be shown to her. She is reported to be a widow. Considering all the aspects, while maintaining the fine and the default sentence awarded by the court below, I find that the substantive sentence can be reduced to R.I. for two months. Crl.A.No.653 of 2003 -: 8 :- In the result, this Crl.A. is disposed of as stated below:- The conviction of the appellant is confirmed. The substantive sentence awarded by the court below is reduced to R.I. for two months while confirming the order of payment of fine and the default sentence awarded by the court below. N.K.BALAKRISHNAN, JUDGE. Jvt