High Court Kerala High Court

Komaru vs State Of Kerala on 9 July, 2009

Kerala High Court
Komaru vs State Of Kerala on 9 July, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 544 of 2003()


1. KOMARU, S/O KARIYAN, MATTATHODY VILLAGE,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, (STATION HOUSE OFFICER
                       ...       Respondent

                For Petitioner  :SRI.I.V.PRAMOD

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :09/07/2009

 O R D E R
                      M.N. KRISHNAN, J.
                    ---------------------------
                    CRL.A.NO.544 OF 2003
                    ------------------------------
              Dated this the 9th 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.40/2000. The accused was charge sheeted

for the offences under Section 55(a) and (g) of the Abkari Act,

convicted and sentenced to undergo R.I for three years each

and to pay a fine of Rs.One lakh each. But, the sentences

were ordered to run concurrently. It is against that decision,

the present appeal is preferred by the accused.

2. The points that arise for determination in the appeal

are (1) whether the conviction under Section 55(a) is

sustainable (2) whether the conviction under Section 55 (g) is

sustainable (3) in case of default, what is the proper quantum

of punishment.

3. Heard the learned counsel for the appellant and the

Public Prosecutor. For the sake of convenience, all the points

are considered together. Learned counsel for the appellant

persuasively and strongly contends before me that there is

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large number of legal impediments standing in the way of the

prosecution to arrive at a conclusion regarding the guilt of

the accused in its favour. It is the case of the prosecution that

on 20.3.1999 at 4.20 p.m the accused was found distilling

illicit arrack and on information, the police party went to the

place. They found wash as well as arrack in his possession

and also the utensils for the manufacture of the illicit arrack.

Ext.P1 is the seizure mahazer. It can be seen that about 13

material objects were taken from the scene of occurrence, of

which, items 1 and 12 are the samples sealed and taken for

the purpose of the case. The other materials are the vessels,

the fire wood and the Can etc used for the purpose of

preserving, making and manufacturing the contraband liquor.

4. PW1 is the police constable who accompanied PW3, the

Circle Inspector of Police, who had made the detection. PW1

would depose that at about 4 p.m on 20.3.1999, they

proceeded to the place Puthuman Harijan Colony and found

the accused distilling illicit arrack. He had spoken about the

arrest, seizure, sampling etc. The material objects are the

aluminum vessels – Mos 1 to 3, the Can – MO4, the firewood

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pieces – MO5, the white Can – MO6 and a blue Can with the

arrack – MO7. He had identified the accused also. He had been

cross examined at length and he would depose that it was the

C.I of Police, who caught hold of the accused. According to him,

all the items seized from the place of occurrence had not been

produced before the court. He does not remember what

was the specimen seal that was used. He also speaks about

the absence of label in Mos 4, 5 and 7. It is admitted by him

that he has not stated anything about the sampling and

sealing in his 161 statement.

5. PW3 is the Circle Inspector of Police under whose

leadership the detection was done . He had spoken about the

apprehension, arrest as well as sampling and sealing of the

material objects. In the cross examination, he would depose

that he did not enquire about Mohammed to whom the

property belonged. It is also deposed by him that the wash

sample was taken in a 750 ml capacity container. If the

investigating officer has recorded that both the samples were

taken in 375 ml bottle it is not correct is the version given

by this witness. He would depose that after entrusting the

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material objects in the police station, he had not seen it.

6. PW4 is the Sub Inspector of Police, who had prepared

the scene mahazer and forwarding note. According to him,

requisition was made to send the material objects to the court

on 27.3. 1999, but he would say that it is not seen in the

forwarding note ie., it is seen only on 30.3.1999. The learned

counsel for the appellant very strongly contends before me that

the detection was on 20.3.1999 but the materials reached the

court only on 30.3.1999 and therefore delay has caused

prejudice. It is argued that the sample alleged to be taken

has not been sent to the court. It has to be remembered as

can be seen from the material objects that large number of

articles were seized from the place which included aluminum

vessels etc., and thondy list has been prepared on 27.3.1999

and the articles had reached the court on 30.3.1999. There

is nothing suggestive to indicate that during the process of

time any tampering has been done especially in the backdrop

of the chemical analyst’s report that the sample that has

been sent was intact and sealed and it tallied with the seal

provided. The settled principle of law is that the court

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should ensure that the contraband seized from the accused is

the one which is sealed and taken as sample and it is that

sample which is sent for chemical analysis. All other

formalities are to ensure the same and if the materials

available show that the said things are done properly, minor

mistakes here and there shall not be considered as vital to

the prosecution. So, certain omissions are quite possible

which does not mean that everything has to be suspected on

account of that omission. As stated by me earlier, if the

insulation of a proper sample is ensured then other materials

has to be viewed in that backdrop. Neither PW1 nor PW3 has

got any axe to grind against the accused in the case. They were

exercising their function under the statute and in that process,

they caught hold of the accused and had taken materials

from the accused. The factum of recovery of the vessels which

are made use for the manufacture of illicit arrack itself

indicates that all is not well with the case of the accused. It

is under those circumstances, I am inclined to hold that no

prejudice has been caused.

7. Turning to the provisions of the Abkari Act, to convict a

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person, the learned counsel for the accused submits that,

Section 55(a) may not be attracted for the reason that there is

no export, import, transport or possession while illegally

transporting. But it has to be held that Section 55(g) is

squarely attracted and that conviction has to be maintained.

So the accused can be found guilty under Section 55(g) and I

set aside the conviction under Section 55(a) . So far as the

sentence is concerned, it is submitted that the accused is aged

about 60 years and he has got a large family to be looked

after and there is no previous history of any conviction. So, I

am inclined to reduce the punishment to one year and default

sentence of imprisonment to 3 months.

8. In the result, the criminal appeal is disposed of as

follows:

1.1. The conviction under Section 55(a) is set a side and

the conviction under Section 55(g) is sustained.

2. The accused is sentenced to undergo S.I for a period of

one year under Section 55(g) of the Abkari Act and to pay

a fine of Rs. One lakh, in default of which, he shall

undergo further S.I for 3 months.

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3.He shall be entitled to set off as contemplated under

Section 428 of the Crl.P.C and the lower court shall

execute the sentence.

4.

M.N. KRISHNAN, JUDGE

cl

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M.N. KRISHNAN, J.

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CRL.A.NO.544 OF 2003

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9th day of July, 2009

JUDGMENT

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