IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 CRL.A.No. 483 of 2003() ------------------------------------ SC.247/2001 of IIIRD ADDL. SESSIONS COURT (ADHOC), THRISSUR .................... APPELLANT(S): ACCUSED --------------------- BALAN, S/O. THOOMATT KANDORAN, PILLAKKAD DESOM, POOKKODE VILLAGE, CHAVAKKAD TALUK. BY ADVS. MR.S.RAJEEV MR.N.K.UNNIKRISHNAN RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CRL.MP. NO.2862/2003 IN CRA. NO.483/2003 DISMISSED 04.08.2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. --------------------------- CRL.A.NO.483 OF 2003 ------------------------------ Dated this the 4th day of August, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed by the Third Additional Sessions Judge (Adhoc), Fast Track Court No.I, Thrissur in S.C.No.247/2001. It is the case of the prosecution that on 19.12.1998 at about 6.30 a.m in front of the house of one Kesavan, the accused was found in possession of 4 litres of arrack in a 10 liters Can and therefore, he was intercepted and arrested. Charge sheet was laid under Section 58 of the Abkari Act and he was convicted thereunder and sentenced to undergo R.I for one year and to pay a fine of Rs. One lakh and in default to undergo R.I for three months. 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 materials are sufficient to hold the accused guilty under Section 58 of the Abkari Act (2) in case of guilt, is the sentence imposed excessive? 2 CRL.A.NO.483/03 3. Heard the learned counsel for the appellant and the Prosecutor. The learned counsel for the appellant very strongly contends before me that the material available was not adequate to connect the accused with the crime and further that inordinate delay in production of the material objects before the court has caused prejudice to the accused and that possibility of the tampering cannot be ruled out and therefore, prays for acquittal of the accused. 4. On the contra, the Prosecutor would submit that it is true that there is delay, but it was only in the proper custody and there is no suspicious circumstance of tampering and so, it shall not be a ground for acquittal. 5. PW1 is the Preventive Officer, who had detected the crime. He had deposed before the court that the accused was found with a Can on his right hand. He was apprehended and when the Can was examined, it was found to contain liquor which on taste and smell, was found to be illicit arrack. Thereafter samples were taken in a 180 ml bottle and sealed. The remainder of the liquor contained in the plastic 3 CRL.A.NO.483/03 Can was also sealed and the accused was produced before the appropriate person. 6. MO1 is the Can said to be seized from the accused. He had been cross examined at length and he stated that the handwriting in Ext.P4 is that of him. It is also his version that after seizing the articles, it was handed over to the Excise Inspector at 7.30 a.m. He would submit that there are no records to prove and that he does not know when it was produced before the court. He also speaks about the signature of the accused in the label and also about the seal ERO. He had also stated that the seal marked was not seen in MO1 since it was broken, but he is sure that it had been sealed. It is true that nobody in the neighbourhood had been sited as the witness. 7. PWs.2 and 3, the two independent witnesses, had not supported the case of the prosecution. PW4 was the Excise Inspector who was available when the accused and the materials objects were brought before him. He would depose that he had prepared the occurrence report as well as 4 CRL.A.NO.483/03 produced the accused. He also submits that the articles were produced before the court only later. In the cross examination he would depose that the articles were entrusted to him on that day by 7.30 a.m. He had very clearly deposed that MO1 and other material objects were kept in the property room which was in his custody. He said that there is no specific reason for producing the articles belatedly. 8. PW6 is another officer, who had accompanied PW1 at the time of the detection. He had also spoken in line with PW1 in the chief examination regarding apprehension, arrest, seizure etc. In the cross examination he had deposed that the seizure mahazer was in the handwriting of PW1. As far as material objects are concerned, he would depose that Pw1 had signed first in MO1 and the independent witnesses had not signed it. He had also spoken about the possession of a bottle and the seal used for the sealing the sample as ERO. So, the evidence of PWs 1 and 6 would indicate that the accused was apprehended from near the house of Kesavan 5 CRL.A.NO.483/03 with a plastic Can of 10 litres capacity which contained 4 litres of liquor which on taste and smell was found to be arrack. It is true that though the apprehension and seizure was on 19.12.1998, the articles were produced before the court only on 22.2.1999. Under ordinary circumstances, one can raise a suspicious circumstance provided that it is not properly explained. 9. PW1, the person who had seized the liquor, had handed over it to the Excise Inspector-PW5 on the very same day at 7.30 a.m. PW5 had very clearly spoken that he had received it at 7.30 a.m and it was in his custody and it was produced before the court on 22.2.1999. He said that he is the person responsible to keep the articles and he was having the key. Even in MO1 when it was produced before the court, marked label was available with the signature of the accused. Further the chemical examiner’s report would reveal that the sealed bottle was intact and the seal provided on the bottle found tallied with the sample seal provided. So, custody of the articles by a competent officer 6 CRL.A.NO.483/03 and the factum that the sealed bottle was intact till it was opened for examination by the chemical analyst would reveal that there was no possibility of any tampering Merely because of the delay one cannot jump into a conclusion that everything is wrong. 10. I do not find any suspicious circumstance and it is well explained by PW5 and therefore no prejudice has been caused to the accused in this case. So, from these materials I have no hesitation to hold that the court below was right in finding in the accused guilty under Section 58 of the Abkari Act. 11. Now turning to the question of sentence. When questioned under Section 313 Cr.P.C, he had spoken about the liability to look after the wife and children besides his mother and the poor financial circumstances. The liquor found was only about 4 litres. Therefore, I feel some indulgence can be shown in this case by reducing the sentence of imprisonment as well as the period of imprisonment for default on payment of fine. Justice can be met by reducing the imprisonment to three months and default sentence to 3 months. Therefore, 7 CRL.A.NO.483/03 the criminal appeal is disposed of as follows: 1. The finding of guilt under Section 58 of the Abkari Act is sustained. 2. The sentence is modified and the accused is sentenced to undergo S.I for a period of three months and to pay a fine of Rs. One lakh and in default to undergo S.I for two months. He shall be entitled to set of as contemplated under Section 428 of the Cr.P.C. The lower court shall execute the sentence. M.N. KRISHNAN, JUDGE cl 8 CRL.A.NO.483/03 M.N. KRISHNAN, J. --------------------------- CRL.A.NO.483 OF 2003 ------------------------------ 4th day of August, 2009 JUDGMENT