IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 CRL.A.No. 314 of 2003() ---------------------------------- SC.554/1999 of ADDL.SESSIONS COURT (ADHOC -I), KASARAGOD .................... APPELLANT(S): ACCUSED: ---------------------- DANIEL MANTHERA, AGED 61 YEARS, S/O. MARTIN MANTHERA, KANKALAM, BELA VILLAGE, KASARAGOD DISTRICT. BY ADVS. MR.M.SASINDRAN MR.K.P.HARISH RESPONDENT(S): COMPLAINANT: --------------------------- STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CRL.MP. NO.1803/2003 IN CRA. NO.314/2003 DISMISSED 22/07/2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE TSS M.N. KRISHNAN, J. --------------------------- CRL.A.NO.314 OF 2003 ------------------------------ Dated this the 22nd day of July, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed by the Additional Sessions Judge,(Adhoc-I), Kasaragod in S.C.No.554/1999. The accused was charge sheeted for the offences under Sections 55(a) and (g) of the Abkari Act and convicted there under and sentenced to undergo four years’ imprisonment each and to pay a fine of Rs. One lakh each and in default, to undergo six months’ imprisonment. There was also a direction that the sentences shall run concurrently. It is against that decision, the accused has come up in appeal. 2. The points that arise for determination in the appeal are (1) whether the materials available are sufficient to convict the accused under Sections 55(a) and (g) of the Abkari Act (2) whether the sentence imposed is excessive. 3. Heard the learned counsel for the appellant and the Prosecutor. It is the case of the prosecution that on 8.5.1998 2 CRL.A.NO.314/2003 at about 1.15 p.m the accused was found distilling 50 litres of wash in a tiled shed against the provisions of the Abkari Act and therefore had been charge sheeted for the offences mentioned above. 4. In the trial court, PWs 1 to 5 and DWs 1 and 2 were examined, Exts.P1 to P6, D1 and D2 and MOs.1 to 5 were marked. 5. Pw1 is the head constable, who had accompanied the Circle Inspector of police on the relevant date. It is deposed by him that on reliable information, the Circle Inspector of Police and party proceeded to the place and found the accused distilling illicit arrack in a shed about 25 metres away from his residential house and therefore, he was apprehended and found out illicit arrack as well as wash. Illicit arrack was sampled in two 375 ml bottles and the wash in a 750 ml bottle. He had also identified the Can-MO1, aluminum vessel - MO2, aluminum vessel with hole-MO4 and the rubber tube used- MO5. He had been cross examined at length. Nothing serious is brought out to discredit his evidence. 3 CRL.A.NO.314/2003 6. PW2 is the Village Officer, who had issued the possession certificate. PW3 is an independent witness, as usual had turned hostile. PW4 is the detecting officer. He had deposed as spoken to by PW1. He had also stated that the accused was found distilling illicit arrack in a shed near his house and he was apprehended and by smell and taste, the liquid was found to be illicit arrack as well as wash. He had been cross examined at length. He had stated how he had proceeded to the place, made the recovery and the arrest. Nothing is brought out to discredit his evidence as well. 7. PW5 is the Circle Inspector of Police, who had conducted the investigation and laid the charge sheet, to whom a suggestion is put that house number of the accused is BPVII/484 but he would say that it is BPVII/491. He had also stated that the sample and other material objects reached the court only on 19.5.1998. He had also spoken about the mistake in the forwarding note regarding the request to note the Methyl alcohol content. He was also questioned about the possession certificate and ownership of the house. 4 CRL.A.NO.314/2003 8. DW1 is the Chemical Examiner. She had spoken about the fact that the normal human error is 1%. DW2 is the accused himself. He would depose that he was not residing in that address and that he had been arrested from his house. 9. The learned counsel for the appellant very strongly contends first on the point regarding non-sufficiency of the evidence regarding the search and seizure. He would depose that no materials are produced to show that the accused was residing in BPVII/491. In support of that contention, he had relied on Ext.D1 ration card and the evidence of DW1. Ext.D1 ration card unfortunately is totally silent about the material particulars required to be relied upon by the learned counsel. In the cross examination of DW2, the accused, he had submitted that he did not raise any objection regarding the arrest, place of arrest etc. It has to be remembered that the police party had gone to the house of the accused and it was from the shed in the premises, the articles were seized. It is the settled law now that even if title is not proved, suppose a person is found to be in possession of liquor in a premises 5 CRL.A.NO.314/2003 from where he is arrested, it will be sufficient to find him guilty under the Act. The evidence of PWs 1 and 2 coupled with the factum of arrest proves that the accused was found in possession of the illicit arrack and wash in the premises stated therein. 10. The learned counsel then contends for the position that though the sample alleged to have been taken on 11.5.1998, it had been produced before the court on 19.5.1998 and the delay is not explained. It is stated that the material objects were in the possession of the S.I of Police. It is true that the fundamental underlying principle in the abkari cases is that the liquor found to be in the possession of the accused has to be taken as sample and that, that sample should be produced before the court in the very same condition and it is that sample, that has to be sent to the chemical analyst for examination. Minor discrepancy, delay or other materials are not ipso facto sufficient to exonerate the accused, if things are done properly. It has to be stated that from the site of seizure sampling has been done. It has been sealed and 6 CRL.A.NO.314/2003 produced before the court and the same thing has been sent for chemical analysis and the chemical analyst’s report in crystal clear terms stated that the seal of each bottles was intact and found tallied with the sample seal provided. So, the mere delay of 7 days had not caused any prejudice to the accused. 11. Then the learned counsel had drawn my attention to the difference of percentage seen in different bottles. So far as illicit arrack is concerned, it is 40.01 and 39.25% whereas wash is concerned, it is 11.83 and 9.90%. The accused himself has chosen to examine the Joint Chemical Examiner and the Joint Chemical Examiner had deposed before the court that 1% human error is always permissible. So far as alcohol is concerned, it is .76% whereas wash is concerned it is more than 1.93%. Wash is a mixture which will have different proportions if it is not uniformly mixed. Therefore, the error in the percentage is not a serious consequence. It has to be remembered in this case that the material objects namely aluminum vessel and aluminum vessel with a hole on the 7 CRL.A.NO.314/2003 middle portion coupled with the presence of a hose to connect would convincingly establish that they are utensils used for the purpose of distilling illicit arrack. In order to attract the offence under Section 55(g) of the Abkari Act, possession of materials alone is even sufficient to punish one guilty under that section. 12. So, from the materials available, I have no hesitation to hold that the accused has committed the offences under Sections 55(a) and (g) of the Abkari Act and therefore, the conviction does not call for any interference. So far as the sentence is concerned, it is seen that the accused has been convicted for four years imprisonment each. In 313 questioning, it has come out that he has a family to be looked after and it was under poor financial circumstances, he had indulged in these type of activities. He had pleaded for mercy. Taking into consideration the quantity involved and other things, I am inclined to reduce the sentence to six months imprisonment each with a fine of Rs. One lakh and default of sentence of two months. 8 CRL.A.NO.314/2003 13. In the result, the criminal appeal is disposed of as follows: 1. The finding of guilt under Sections 55(a) and (g) of the Abkari Act is confirmed. 2. The sentence is modified and the accused is sentenced to undergo S.I for six months and to pay a fine of Rs. One lakh each under Sections 55(a) and (g) of the Abkari Act and in default, to undergo S.I for two months. The sentences shall run concurrently which means he need only suffer one set of sentence. He is also entitled to set off as contemplated under Section 428 of the Code of Criminal Procedure. The lower court shall execute the sentence. M.N. KRISHNAN, JUDGE cl 9 CRL.A.NO.314/2003 M.N. KRISHNAN, J. --------------------------- CRL.A.NO.314 OF 2003 ------------------------------ 22nd day of July, 2009 JUDGMENT 10 CRL.A.NO.314/2003