IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 13TH JUNE 2008 / 23RD JYAISHTA 1930 CRL.A.No. 2251 of 2007() ------------------------ SC.1624/2002 of ADDL.SESSIONS COURT (ABKARI CASES) KOTTARAKKARA CP.188/2001 of JUDL.MAGISTRATE OF FIRST CLASS-I, PUNALUR .................... APPELLANT: ----------- BABU, C.NO.2273, CENTRAL PRISON, TRIVANDRUM. BY ADV.ALAN PAPPALI RESPONDENTS: ------------- STATE OF KERALA REPRESENTED BY A PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.Appeal No.2251 of 2007 ------------------------------------- Dated this the 13th day of June, 2008 The 2nd accused in a prosecution under Section 55 (b) and (g) of the Kerala Abkari Act is the appellant before me. The 1st accused was found not guilty and acquitted. The appellant was found not guilty of offence under Section 55 (b) of the Kerala Abkari Act. But he was found guilty of the offence under Section 55(g) of the Kerala Abkari Act to undergo S.I for a period of 3 years and to pay a fine of Rs.1 lakh and in default to undergo S.I for a period of 6 months. 2. The crux of the allegations against the petitioner is that he along with the 1st accused was engaged in illicit distillation of arrack. For that purpose, they had allegedly kept 680 litres of wash, other materials and implements in their possession on 26.08.01 at 2.15 p.m. On receipt of discreet information about the misdeeds of the accused, PW4-a police official allegedly went to the scene of the crime. He was assisted by members of the Powra samithi to conduct the raid. PW3, another police official had also accompanied PW4. When they reached the scene of the crime which is situated inside the forest, they found accused 1 Crl.Appeal No.2251 of 2007 2 and 2 allegedly engaged in mixing wash. The 1st accused ran away. He could not be apprehended. The appellant herein-the 2nd accused was intercepted, apprehended and arrested. It is the case of the prosecution that the wash belongs to the 1st accused and the appellant, the 2nd accused had gone to the scene of the crime to work for and to help the 1st accused. 3. The seizure was effected under Ext.P1. Ext.P1 is the seizure mahazar. Ext.P2 F.I.R was registered. Investigation was conducted by PW6. It was PW5, who arrested the 1st accused later. Investigation was completed and final report was filed by PW6. 4. The accused denied the offences alleged against them and thereupon the prosecution examined Pws 1 to 6 and proved Exts.P1 to P8. M.Os 1 to 4 barrels, in which the total quantity of 680 litres of wash were kept, were produced and marked by the prosecution. 5. The appellant/2nd accused took up a defence of total denial. According to him, he had gone to the forest to cut grass for his cattle. He was intercepted on the basis of mere suspicion. He was not in any way connected with the crime detected. He was being proceeded against unnecessarily, it was urged. No defence evidence was adduced. Crl.Appeal No.2251 of 2007 3 6. The learned Judge on an anxious evaluation of all the materials available came to the conclusion that the prosecution has succeeded in establishing the offence under Section 55(g) of the Abkari Act alleged against the appellant. The co-accused was found not guilty and acquitted. The appellant was acquitted under Section 55(b) of the Kerala Abkari Act. It is, in these circumstances, that the learned Judge proceeded to pass the impugned verdict of guilty, conviction and sentence. The petitioner was sentenced to undergo S.I for a period of 3 years and to pay a fine of Rs.1 lakh. Default sentence of S.I for a period of 6 months was also imposed. 7. I have heard the learned counsel for the appellant/2nd accused and the learned Public Prosecutor. The prosecution relied on the evidence of Pws 1 and 2, the alleged independent witnesses, who had attested Ext.P1 seizure mahazar. They denied their signatures in Ext.P1, but admitted that the police had with mala fide motive obtained their signatures in blank forms. They turned hostile to the prosecution completely and did not support the contents of Ext.P1. PW4 is the detecting officer and PW5 had accompanied the detecting officer. They tendered evidence on oath about the seizure. Ext.P1 is the seizure mahazar and Ext.P2 is the F.I.R. Exts.P3 to P8 are documents Crl.Appeal No.2251 of 2007 4 relating to the arrest and compliance with the formalities. Ext.P7 is a chemical examiner's report. Pws 5 and 6 are police officials. PW5 had arrested the 1st accused. PW6 had conducted the investigation and filed the final report. 8. The learned counsel for the appellant contends that the court below erred grossly in accepting and acting upon the oral evidence of Pws 3 and 4. They are police officials. They are interested in the prosecution. There are incongruities in their evidence. The counsel further points out that the procedure adopted is defective and leaves very little to be desired. Because of such inadequacies on their part also, their evidence must be viewed with caution and suspicion. At any rate, reliance should not be placed on the oral evidence of Pws 3 and 4 to enter a verdict of guilty and conviction against the appellant, argues the counsel. 9. I have been taken through the entire evidence. Pws 3 and 4 had given cogent and acceptable evidence. I find no merit in the contention that they are interested and hence their evidence should not have been accepted without corroborative independent evidence. The hostility of Pws 1 and 2 is also heavily relied on. But I find no merit in that contention also. Pws 3 and 4 are not shown to have any motive, ill will or malice against the Crl.Appeal No.2251 of 2007 5 appellant. They are public officials and in such capacity they are bound to detect offences and bring the offenders to book. This legitimate interest which they have in the successful conduct of the prosecution cannot, at any rate, persuade any prudent mind to view their evidence with any doubt whatsoever or reservation. Their evidence does inspire confidence. Their evidence is supported by the contents of the contemporaneous seizure mahazar Ext.P1. Pws 1 and 2 have turned hostile. But a reading of their evidence shows that their evidence is totally unconvincing. They want to assert that the police had with mala fide motive obtained their signatures in blank forms. But the police, according to them, is not misutilsing those signed papers but are relying on Ext.P1 seizure mahazar. Less said about that improbable version, the better. I need only note that the evidence of Pws 3 and 4 is supported by the contemporaneous seizure mahazar Ext.P1. 10. The learned counsel for the appellant attempts to pick holes in the various steps taken by the Investigating Officers/detecting officers and contends that their evidence must generate suspicion on that score also. Even though other articles were also seized as per the evidence of Pws 1 and 2, only M.Os 1 to 4 have been brought to court. It is further pointed out that Crl.Appeal No.2251 of 2007 6 though the occurrence had taken place on 26.08.2001, the contraband articles were produced before court on 15.09.01. This gap of time is not satisfactorily explained, it is contended. The 1st accused who is the principal offender having been given the benefit of doubt, the appellant should also have been granted the benefit of such reasonable doubt, which was aroused on the basis of the materials available, submits the learned counsel for the appellant. 11. I have considered the alleged inadequacies on the part of the Investigating Officer. Merely because M.Os 1 to 4 alone were produced and marked, I am of opinion that no crucial inferences against the Investigating Officer can be drawn. Basically the prosecution relies on the seizure of wash and in these circumstances if only the containers in which the wash was held are produced before court, I am unable to find any sinister significance in such conduct. Similarly the gap of time between 26.08.01 to 15.09.01 in production of the material objects before court does not also arouse any serious doubt or reservation in my mind especially in the light of the unchallenged evidence of PW1 on this aspect - that the article was under his personal custody during the said period. Any and every omission/inadequacy on the part of the Investigating Officer cannot certainly confer on the Crl.Appeal No.2251 of 2007 7 accused any advantage or benefit. Unless such inadequacy/impropriety is gross or results in miscarriage of justice or arouses reservation in the mind of the court about the acceptability of the evidence tendered by the eye witnesses, crucial significance cannot and need not be attached to such inadequacies. 12. I am, in these circumstances, satisfied that the oral evidence of Pws 3 and 4 does not deserve to be approached with any doubt or suspicion. I concur with the conclusion of the court below that their evidence can be safely relied on and when the same is relied on, the offence under Section 55(g) is established satisfactorily against the appellant. 13. No other contentions are raised. I am, in these circumstances, satisfied that the verdict of guilty and conviction can be upheld. 14. The counsel contends that, at any rate, the sentence imposed is grossly excessive. The learned counsel argues that even going by the version of the prosecution, the 1st accused was the one who owned the contraband article and the appellant was only helping the 1st accused in his mission as a paid labourer. At any rate, even the allegations do not justify the unnecessarily severe substantive sentence of imprisonment of S.1 for a period Crl.Appeal No.2251 of 2007 8 of 3 years and the default sentence of S.I for a period of 6 months, argues the learned counsel. 15. Having considered all the relevant inputs, I find merit in the submission of the learned counsel for the appellant. I am persuaded to agree that, in the facts and circumstances of this case, leniency can be shown to the appellant. In the result: a) This Appeal is allowed in part; b) The verdict of guilty and conviction of the appellant are upheld; c) But the sentence imposed on the appellant is modified and reduced. In supersession of the sentence imposed on him by the court below, he is sentenced to undergo S.I for a period of 9 months. The sentence of fine is confirmed. The default sentence is reduced to S.I for a period of 3 months. Communicate copy to the Sessions Court. The Court shall take immediate steps to issue revised warrant of commitment. (R.BASANT, JUDGE) rtr/-