IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 CRL.A.No. 50 of 2003() ---------------------- SC.602/1999 of ADDL.SESSIONS COURT (ADHOC), KASARAGOD .................... APPELLANT/ ACCUSED: --------------------- ROYCHAN @ THOMAS, S/O.THOMAS, AGED 25/98, KOTTAMEL VEEDU, PERAMBA, MALOM VILLAGE. BY ADV. SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE RESPONDENT/COMPLAINANT: -------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.B.JAYASURYA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------- Crl.A.No.50 of 2003 ----------------------------------------- Dated this the 8th July, 2009 JUDGMENT This appeal arises from conviction and sentence passed against the appellant to undergo rigorous imprisonment for three years and to pay a fine of Rs.1 lakh and in default to undergo rigorous imprisonment for six months. Set off was also ordered. 2. According to prosecution, on 1.8.1998 at about 3.10 p.m, accused was found carrying 1½ litres of illicit arrack in a plastic can, in violation of the provisions in the Abkari Act. He was charge sheeted for offence under Section 55(a) of the Abkari Act. The evidence in this case consist of oral evidence of PW1 to PW5 and Exhibits P1 to P6 and MO1 and MO2, on the side of the prosecution. Accused did not adduce any evidence. He stated that he was falsely implicated, since he refused to be a witness in a case. 3. PW1 is the police constable and PW5 is the Sub Inspector, who have given evidence regarding arrest and Crl.A.50/03 2 seizure of the contraband article from the accused. They gave evidence consistent with the prosecution case. According to them, while they were on patrol duty, they found accused coming with a plastic bag. The jeep was stopped and Sub Inspector and the police constable questioned the accused and on examination of the article, it was found that a can was in the bag and it contained 1 ½ litres of arrack. Two samples were taken in two bottles. The accused was arrested from the spot and the articles were seized under a mahazar. MO1 is the can and MO2 is the plastic bag. 4. PW5 gave evidence that while working as Sub Inspector, he was on patrol duty on 1.8.1998 and he found the accused proceeding with a bag and the accused was found to be perplexed on seeing the jeep. Jeep was stopped and PW5 and another police constable caught the accused in the presence of witnesses, the bag was examined and it was found to contain a can, in which there was 1 ½ litres of arrack. The accused was arrested and the articles were seized. Two samples were Crl.A.50/03 3 taken. FIR, Exhibit P4, was prepared. He identified MO1 and MO2 as the articles. 5. PW2 to PW4 are the independent witnesses. PW2 stated that he did not see the accused being arrested. He was declared as hostile and he denied the signature in Exhibit P1 mahazar. But, in cross-examination, he stated that nothing was written in the paper, when he signed it. Evidently, his evidence cannot be relied upon. PW3 is another witness to the scene mahazar. He was also declared as hostile. But, he admitted his signature in Exhibit P2 scene mahazar. He stated that he was not present at the time when the scene mahazar was prepared. PW4 is the Village Assistant, who prepared the cite plan, Exhibit P3. 6. Learned counsel for accused argued that on the basis of the evidence of PW1 and PW5, the accused ought not to have been convicted. According to him, there was no label on MO1, which is alleged to have been taken from the possession of the accused, as admitted by PW1 and PW5. Therefore, MO1 cannot be Crl.A.50/03 4 said to be the article seized from the possession of the accused. On going through the evidence of PW1 and PW5, it can be seen that neither of these witnesses deposed that MO1 was labelled at the time of seizure. Therefore, the absence of label at the time of evidence is of no significance. 7. It has come out from their evidence that two samples were taken in two bottles and those were labelled and signatures of the accused and the witnesses were obtained on the same. Those were sent for chemical analysis also, and the certificate, Exhibit P6, relates to such samples. As per the said certificate, ethyl alcohol was detected in the samples. Therefore, it cannot be said that the samples which were analysed were not those taken from the possession of the accused only because MO1 did not contain any label at the time of giving evidence. The mere omission to label a material object cannot lead to any conclusion against the prosecution. 8. It was also argued that there was another Crl.A.50/03 5 accused in the jeep and he was also arrested for possession of liquor. The article seized from his possession also was present in the jeep. Therefore, there may be a mistake and the accused cannot be found guilty for the offence, since it is not conclusively established that the article analysed in this case was the one taken from the accused. This argument cannot be sustained, since, in the light of the specific evidence given by PW1 and PW5 that there was label on the samples which were taken from the scene of occurrence from the can, which was seized from the possession of the accused. Since the labels contained signatures of the accused and the witnesses, there could not have been any mistake while sending the samples for analysis. Nothing is brought out in evidence to show that in respect of the identification of the samples, mistake was committed. 9. It is also argued that the arrest in this case is illegal and is not in accordance with the dictum laid down in the decision of the Supreme Court. Therefore, Crl.A.50/03 6 the entire search and seizure are vitiated and the accused cannot be convicted. PW1 and PW5 deposed that the accused was arrested from the spot. Both PW1 and PW2 are official witnesses. PW5 arrested the accused and he is competent to arrest the accused. Both of them deposed that accused was arrested from the spot, since he was found in possession of contraband articles. 10. No question was put to either PW1 or PW5 regarding the details of arrest, as to whether there was any omission relating to the formalities to be complied with, at the time of arrest. When the official acts are done, it has to be presumed that the said acts are performed regularly. In the above circumstances, unless there are materials on record to show that the accused cannot be acquitted on the ground urged. 11. It was also argued that in the light of the report of the Chemical Analyst, which is marked as Exhibit P6, a doubt arose regarding the article allegedly seized from the accused. The evidence in this case reveals that two Crl.A.50/03 7 samples were taken from the can. If that be so, samples must contain the same percentage of ethyl alcohol. But, in Exhibit P6, the percentage of ethyl alcohol found in two samples differed. In item No.1, there was 33.63%, whereas in item No.2, it was 33.49%. There is a difference of only 0.14%. 12. It is true that there is some discrepancy and this is to be explained by the prosecution. But, no question was put to any of the witnesses pointing out this discrepancy. In the absence of this, the court cannot proceed on any assumption that the samples analysed in this case were drawn from different cans and not from the same can etc. Under what circumstances such a variation can come, is a matter which has to be brought out in evidence. In the absence of any evidence, this discrepancy is not sufficient to cast a reasonable doubt regarding the entire prosecution case, especially since as per the evidence, the two samples taken from the accused were from the same can and those were labelled and on which the signatures of accused and Crl.A.50/03 8 witnesses were affixed. 13. Learned defence counsel argued that the article was seized on 1.8.1998, but MO1 reached the court only after two months. Therefore, the accused is entitled for acquittal. First of all, the mere delay in sending the articles to the court alone may not be sufficient to discard the prosecution case. Further, the evidence of PW5 shows that MO1 was received in the court on 5.8.1998, i.e., within four days of the seizure, namely, 1.8.1998. Therefore, it cannot be said that there was inordinate delay in sending MO1 to the court. On this ground also, I am not inclined to interfere with the conviction. 14. On going through the evidence of PW1 and PW5, I find there is no material discrepancy or inconsistency in their evidence. No serious contradictions are brought out from their evidence to discard their evidences as a whole. 15. On considering the various aspects, I find that Crl.A.50/03 9 the conviction passed against the appellant is only sustainable and it is confirmed. 16. Regarding the sentence, learned counsel for appellant argued that the article involved is only 1 ½ litres of illicit arrack and the sentence awarded is highly excessive. The incident happened more than ten years back and this case was pending for the past about ten years before different courts. Accused is not involved in any other case and according to him, this was a case foisted against him, since he refused to be a witness in a case at the request of the police. Therefore, the sentence may be reduced, it is submitted. 17. It was also pointed out that in one of the cases, in which 10 litres of arrack was involved, the sentence was reduced to six months by this Court and the Supreme Court reduced the sentence to nine months in a case involving 4 litres of arrack (Nhaliyan Makkil Raveendran v. State of Kerala ( (2008)5 SCC 436). 18. On hearing both sides and considering the facts and circumstances, I find that the sentence can be Crl.A.50/03 10 reduced and a lesser sentence will be sufficient to meet the ends of justice. Hence, the following order is passed: (i) The conviction passed against the petitioner for offence under Section 55 (a) of the Abkari Act is confirmed. (ii) In supersession of the sentence passed, the appellant is sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.1,00,000/- and in default to undergo simple imprisonment for three months. The Criminal Appeal is partly allowed. K.HEMA, JUDGE vgs. Crl.A.50/03 11 K.HEMA, J. ------------------------------ Crl.A.NO.50 of 2003 ------------------------------ JUDGMENT 8.7.2009