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.
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CRL.A.NO.544 OF 2003
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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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