IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 CRL.A.No. 647 of 2008() ----------------------- SC.167/2005 of .................... APPELLANT(S): APPELLANT/PETITIONER: ----------------------------------- C. PUSHPAKARAN, CONVICT NO.5410, CENTRAL PRISON, KANNUR. BY ADV. SRI.DILEEP MOHAN RESPONDENT(S): --------------- STATE OF KERALA. BY PUBLIC PROSECUTOR SRI C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A. No.647 of 2008 ---------------------------------------------- Dated, 18th February, 2009. JUDGMENT The sole accused in S.C.No.167/2005 is the appellant. In this appeal, he is challenging his conviction and sentence under section 55(a) of the Abkari Act. In pursuance of the judgment, he is undergoing imprisonment and hence he preferred this appeal from jail. 2. The prosecution case is that on 25.3.2004, at 1.30 p.m., the accused was found possessing, for the purpose of sale, 25 packets of illicit arrack each having a capacity of 100 ml, in a plastic sack at the side of the road leading to Kunnummal about 25 metres west of the village office, Bandaduka. On the basis of the said allegation, OR No.6/2004 was registered in the Badiadka excise range for the offence punishable under section 55(a) of the Abkari Act. After investigation, final report was filed in the court of Judicial First Class Magistrate, Kasaragod whereupon C.P.No.315/2004 was instituted and the case was committed to the Sessions Court wherein it was taken into file as S.C.No.167/2005. Subsequently, the case is made over to the trial court for disposal. On appearance of the accused, a formal charge was framed under section 55(a) of the Abkari Act and the same was read over and explained to the accused and he pleaded not guilty and Crl.A.No.647/2008 -:2:- subsequently PWs 1 to 4 were examined and Exts.P1 to P6 were marked from the side of the prosecution. When the accused was examined under section 313 Cr.P.C., he denied all the incriminating circumstances. The accused took a stand of total denial. No evidence was adduced from the side of the defence. The trial court finally convicted the accused under section 55(a) of the Abkari Act, and after hearing him on sentence, he is sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/-, and in default of payment of fine, the accused is also directed to undergo simple imprisonment for a further period of 6 months. Set off is allowed under section 428 of Cr.P.C. It is the above conviction and sentence challenged in this appeal. 3. As the appeal is preferred from the jail, Adv. Sri Dileep Mohan is appointed as State Brief to prosecute the appeal for and on behalf of the appellant. Thus, I have heard the learned counsel appearing as State Brief and the learned Public Prosecutor. 4. The prosecution very much relies upon the evidence of PWs 1 and 2 to prove its case. PW1 is the Preventive officer attached to the Excise Range Office, Badiadka who detected the offence. When PW1 was examined, he had deposed that on 25.3.2004, he was on patrol duty along with other excise party and when he reached near the Crl.A.No.647/2008 -:3:- village office, Bandaduka at about 1.30 p.m., he saw the accused walking with a plastic sack containing something, and feeling suspicion, the patrolling party approached him and inspected the sack in the presence of the independent witnesses. According to PW1, on such inspection, it is found that the sack contained 25 packets of illicit arrack each of the packets having 100 ml.capacity. PW1 had specifically deposed that on all the packets, there were writings in Kannada. PW1 further stated that he had opened one of the covers and examined its contents by smelling and tasting and according to PW1, he was satisfied that the accused was possessing illicit arrack and accordingly, he was arrested then and there and the contraband articles were taken into custody, after taking sample of the same. Ext.P1 is the arrest memo and Ext.P2 is the seizure mahazar marked through PW1. PW2 is the Preventive Officer who accompanied PW1 at the time of detection of the offence. He deposed in terms of the deposition of PW1. PW2 identified the accused in the court and deposed that Ext.P2 mahazar contained his signature. PW3 is an attester to the seizure mahazar. PW4 is the Excise Inspector attached to the above excise range who conducted the further investigation and laid the charge. Ext.P3 crime and occurrence report was marked through PW4. The property list, forwarding note prepared by PW4 are marked as Exts.P4 Crl.A.No.647/2008 -:4:- and P5 respectively. Ext.P6 is the Chemical Analysis report marked through PW4. On the basis of the above evidence, the trial court found that the accused is guilty of the charge levelled against him and accordingly he is convicted and sentenced. 5. It is vehemently argued that except the interested versions of the official witnesses, there is no independent and cogent evidence to connect the accused with the alleged offence. In support of the above submission, it is pointed out that though PW3 was cited and examined as independent witness, he had stated nothing in favour of the prosecution except his admission with respect to his signature. Therefore, according to the learned counsel, there is no independent and acceptable evidence to substantiate the prosecution evidence and therefore, the finding of the court below is liable to be set aside. Another point argued in the trial court as well as before this court is that, on the basis of Ext.P2 seizure mahazar and the samples drawn thereon, it cannot be treated that the same representing the entire property alleged to have seized from the possession of the accused. According to the appellant, PW1 had taken sample only from one packet and therefore, the same is not representing the entire contraband articles. Thus according to the learned counsel there is procedural irregularities and hence, the conviction is liable to be Crl.A.No.647/2008 -:5:- interfered. 6. Per contra, the learned Public Prosecutor submitted that the deposition of official witnesses, namely, PWs 1 , 2 and 4 are free from infirmities and discrepancies and therefore, their evidence can safely be accepted and acted upon. It is also pointed out by the learned Public Prosecutor that PW1 after taking one of the packets from the sack possessed by the accused, two more packets were opened and he himself was satisfied that the entire packets contained the same article. Therefore, according to the learned counsel, the sample taken as per Ext.P2 is sufficient to treat that the same represents the entire contraband articles seized from the possession of the accused. Hence, the learned Public Prosecutor submitted that no interference is warranted. 7. I have carefully considered the contentions advanced by the appellant as well as the prosecution, and also perused the evidence and materials on record. PWs 1 and 2 are excise officials and they have deposed in terms of the prosecution case. Though PWs 1 and 2 were subjected to extensive cross examination, nothing was brought to discredit their version. Even though PW3 did not fully support the prosecution, he had admitted his signature in Ext.P2 and there is no plausible explanation from his side as to how he had put his signature Crl.A.No.647/2008 -:6:- in Ext.P2. Even though PW3 did not support the prosecution case as such, the evidence of PWs1 and 2 is fully supported by the contemporaneous document Ext.P2 mahazar which reached in the court in time. Ext.P1 arrest memo was also prepared by PW1 from the spot itself. From the above evidence and circumstances, I am of the view that the evidence of PWs 1 and 2 can be safely accepted and acted upon. There is no rule that the evidence of official witnesses cannot be accepted and acted upon unless it is corroborated from independent source. In the present case, there is absolutely no infirmity or discrepancy in the deposition of the official witnesses. Therefore, the contention raised by the appellant is not acceptable. 8. Another contention raised by the appellant is that there is no homogeneous sampling because only one packet was opened and sample drawn. When PW1 was examined, he had categorically deposed that altogether he had examined 3 packets and also deposed that there was writing in all the packets in “Kannada”. A Division Bench of this Court in the decision reported in Chandran v. State of Kerala (2008 (2) KLT 513) has held that “ if labelled sealed bottles containing same substance are seized, checking of sample from one bottle will be enough to confirm the value of the articles Crl.A.No.647/2008 -:7:- in all the bottles. Similarly if large number of similarly labelled bottles purported to contain same type of article are seized, chemical examination can be done by taking one bottle or certain number of bottles selected at random”. In the light of the above decision, the contention of the appellant is not sustainable. No other contentions are raised by the appellant. 9. In the light of the above discussion and the materials and evidence on record, I am of the view that the finding arrived on by the court below is absolutely correct and no interference is required and thus I confirm the conviction. 10. Regarding the sentence, it is submitted that the quantity involved is small and the accused, being the first time offender, a lenient view may be taken. Considering the entire facts and circumstances involved in the case, especially, in the light of the above submission, certain modifications can be made with respect to the sentence. Thus, the substantial sentence of one year simple imprisonment is confirmed. With respect to the sentence of fine, no interference is called for since the amount of fine awarded is only the statutory minimum amount. But the default sentence can be reduced from 6 months to 3 months. Thus, while confirming the substantial Crl.A.No.647/2008 -:8:- sentence of imprisonment and fine, the default sentence is refixed as 3 months. Set off is allowed under section 428 Cr.P.C. It is borne out from the records that the accused was arrested on 25.3.2004 and he was released on 8.4.2004 and thus he was under custody as an under- trial prisoner for about 14 days. Date of the impugned judgment is 18.10.2007, from which date onwards, he is undergoing imprisonment pursuant to the said judgment and thus now he had already undergone imprisonment for one year and 4 months. Since the set off is allowed under section 428 Cr.P.C and the default sentence is refixed as three months, the appellant/accused need not be further detained in jail and he is entitled to release forthwith. Therefore, there will be a direction to release the appellant forthwith, if he is not required in any other case. The appeal is disposed of confirming the conviction but subject to modification with respect to the default sentence indicted above. V.K.MOHANAN, JUDGE kvm/- Crl.A.No.647/2008 -:9:- V.K.MOHANAN, J. CRL.A. No.647 OF 2008. Judgment Dated 18.2.2009: