IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 483 of 2003()
1. BALAN, S/O. THOOMATT KANDORAN,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY PUBLIC
... Respondent
For Petitioner :SRI.S.RAJEEV
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :04/08/2009
O R D E R
M.N. KRISHNAN, J.
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CRL.A.NO.483 OF 2003
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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?
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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
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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
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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
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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
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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,
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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
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M.N. KRISHNAN, J.
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CRL.A.NO.483 OF 2003
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4th day of August, 2009
JUDGMENT