IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 1814 of 2006()
1. LUKOSE,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :ADV.E.S.ASHRAFF(STATE BRIEF)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :23/01/2007
O R D E R
V. RAMKUMAR, J.
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CRL.APPEAL No.1814 of 2006
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Dt. JANUARY 23, 2007
JUDGMENT
In this appeal preferred from the Central Prison, Thiruvananthapuram, the
appellant who was the sole accused in S.C.No.375/2002 on the file of the Addl.
Sessions Court (Abkari), Kottarakkara, for offences punishable under sec.55(a)
and 55(i) of the Abkari Act, challenges the conviction entered and the sentence
passed against him under sec.55(a) of the said Act.
2. The case of the prosecution is that on 3.6.2000 at about 8 p.m. in the
rubber plantation of one Baby of Vadakkumkara veedu, Palamukku, the accused
was found in possession of 4 litres of illicit arrack in a black jerry can having a
capacity of 5 litres and that the accused has thereby committed offences
punishable under secs.55(a) and 55(i) of the Abkari Act.
3. On the accused pleading not guilty to the charge framed against him
by the court below for the aforementioned offences, the prosecution was
permitted to adduce evidence in support of its case. The prosecution altogether
examined 5 witnesses as PWs.1 to 5 and got marked 5 documents as Exts.P1
to P5 and 2 material objects as M.Os.1 and 2.
4. After the close of the prosecution evidence, the accused was
questioned under sec.313(1)(b) Cr.P.C. with regard to the incriminating
circumstances appearing against him in the evidence for the prosecution. He
denied those circumstances and maintained his innocence. He had the
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following to submit before court. He is a headload worker by profession. While
he was unloading ration goods for the ration dealer who was a member of the
Congress political party, a quarrel ensued between them. He was subsequently
caught by the police from his house at midnight and falsely implicated in the
case.
5. The court below did not consider it a fit case for recording an order of
acquittal under sec.232 Cr.P.C.. The accused was, therefore, called upon to
enter on his defence and to adduce any evidence which he might have in
support thereof. The accused did not adduce any defence evidence.
6. The learned Addl. Sessions Judge as per judgment dt.19.7.2006 found
the appellant not guilty of the offence punishable under sec.55(i) of the Abkari
Act, but found him guilty of the offence punishable under sec.55(a) of the Act
and sentenced him to undergo simple imprisonment for two years and to pay a
fine of Rs.1 lakh and, on default to pay the fine, to undergo simple imprisonment
for 6 months more. It is the said judgment which is assailed in this appeal.
7. I heard Adv. Sri E.S.Ashraf, the learned counsel who defended the
appellant on State Brief, and Adv. Sri K.S.Sivakumar, the learned Public
Prosecutor who defended the State.
8. The only point which arises for consideration in this appeal is as to
whether the conviction entered and the sentence passed against the appellant
are sustainable or not?
THE POINT
9. P.W.1 is the police constable who accompanied the detecting officer
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viz. P.W.2. P.W.2 is the Sub Inspector of Police, Yeroor Police Station. He
detected the offence. PWs.3 to 5 are the independent witnesses to the arrest,
search and seizure. All of them turned hostile to the prosecution. After the
conclusion of investigation it was PW.2 himself who laid the charge.
10. The learned counsel appearing for the appellant made the following
submissions before me in support of his fervent plea for acquittal of the
appellant:-
The offence was allegedly detected at 8 o’ clock in the night of 3.6.2000
from a rubber plantation. PWs.1 and 2 claim to have seen the accused in the
light provided by torch light. Both of them did not have any previous
acquaintance with the accused who had allegedly made good his escape at the
time of detection. He was arrested only subsequently i.e. on 5.6.2000. PW.2
has confessed that he did not get the accused identified by CW.3 who is PW.5.
There is, therefore, no acceptable evidence to show that it was the accused
standing in the dock who was detected by PW.1 and 2 in the night of 3.6.2000.
Similarly, the material objects seized in this case on 3.6.2000 were produced
before court only on 22.6.2000. As per sec.36 of the Abkari Act the provisions in
the Cr.P.C. pertaining to search and seizure are applicable to prosecution under
the Abkari Act also. As per sec.102(3) Cr.P.C., the properties should have been
produced before court forthwith. That has not been done. In the light of the
decisions in Dominic v. State of Kerala – 1989 (1) KLT 601 and Muraleedharan
v. S.I. of Police – ILR 2007 (1) Kerala 26, delay in sending the material objects to
the court should be looked upon with suspicion. The magistrate was not justified
Crl..A.No.1814/06 4
in sending the sample bottle even without a forwarding note or requisition. There
is also no acceptable evidence to show that the sample bottle which was
produced by PW.2 before court was the one which ultimately reached the hands
of the chemical examiner. The conviction entered and the sentence passed
overlooking these aspects cannot be sustained.
11. I am afraid that I cannot agree with the above submissions. The
testimony of PWs.1 and 2 which corroborate with each other on material
particulars, convincingly shows that while PW.2 along with his police party
including PW.1 was proceeding in their jeep on patrol duty, they got credible
information from a place called Palamukku to the effect that the accused was
vending illicit arrack. On proceeding further they came across the accused in the
vicinity of a rubber plantation with M.O.1 can having a capacity of 5 litres and
MO.2 glass tumbler. The accused was seen in a perplexed and nervous
condition. On interrogation and on testing the contents of the jerry can carried by
the accused through smell and taste, PW.2 was convinced that the accused was
selling illicit arrack. PW.2 drew a sample containing 350 ml. from the bulk
quantity. The sample bottle was separately packed and sealed. The accused
was thereafter arrested and the jerry can containing the bulk quantity and the
sample bottle were seized under Ext.P1 mahazar. PW.2 then took the accused
as well as the material objects and seizure documents to the police station from
where he registered the above crime. It was PW.2 himself who conducted the
investigation and laid the final charge before court. During the course of
investigation he produced the material objects including the sealed sample bottle
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before court on 22.6.2000 as evidenced by Ext.P3 property list.
12. It is true that the prosecution has not produced any forwarding note
or requisition seeking the forwarding of the contraband liquor to the chemical
examiner for analysis. But then the right-hand side column of Ext.P3 property
list itself contains a request to send the sample to the chemical examiner for
analysis and to get a report from the chemical examiner. That is sufficient.
13. No doubt, the properties were produced before court only on
22.6.2000. But that is not fatal to the prosecution in the light of the credible
testimony of PW.2 to the effect that until production before court they were in his
safe custody. If PW.2 could be trusted with for the arrest, search and seizure,
there is no reason why PW.2 cannot be believed when he says that until
production of the properties before court, they were in his safe custody.
14. It is true that the sample bottle was forwarded to the chemical
examiner only as per the covering letter of the magistrate dt. 6.7.2000 as
revealed by Ext.P4 report of the chemical examiner. It is also true that there are
no contemporaneous records maintained before the committal magistrate to
show that the person in charge of the thondy section had despatched the sample
bottle to the chemical examiner’s laboratory for analysis. But then the sample
bottle was received in court in a sealed condition. Ext.P4 report of chemical
analysis recites that a sample bottle containing 350 ml. of a liquid allegedly
arrack seized in Crime No.107/2000 of Yeroor Police Station was received along
with the covering letter dt. 6.7.2000 of the magistrate. This shows that the
sample bottle which was produced in this case was forwarded to the chemical
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examiner by the magistrate. The seal on the sample as well as the specimen
seal sent separately to the chemical examiner were found to tally. In the light of
the presumption under sec.114 of the Evidence Act this court can presume that
official acts were properly performed, especially when it was not even remotely
suggested by the defence that the sample bottle despatched to the chemical
examiner’s laboratory was not the sample bottle produced in this case by PW.2
along with Ext.P3 property list.
15. The contention based on the question of identity of the accused also
has no merit. It is true that both PWs.1 and 2 had no previous acquaintance with
the accused. But they were proceeding to the spot on getting a credible
information from Palamukku and consistent with the information received by
them, they did see a person carrying a jerry can and a glass tumbler. Even
though the said person was able to make good his escape, both PWs.1 and 2
were able to see his features in the torch light. Moreover, PWs.3 to 5 who are
the independent witnesses to the search and seizure and who are the attestors
to Ext.P1 contemporaneous mahazar prepared by PW.2 from the spot had
identified the accused as the person who took to his heels on seeing the police
party. PW.2 has deposed before court that on 5.6.2000 at 12.45 a.m. while
arresting the accused, he could identify him as the person whom he had seen at
the time of occurrence and that the witnesses who were present at that time had
also confirmed his identity. This means that it was after properly confirming the
identity of the accused that PW.2 arrested him. No doubt, PWs.3 to 5 who are
the independent witnesses have turned unfriendly to the prosecution. But courts
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are not unfamiliar with such witnesses. Merely because they have turned
disloyal to the prosecution, it does not follow that the evidence of PWs.1 and 2
who detected the offence should be thrown overboard (see Sivaraman v. State
of Kerala – 1981 KLT (SN) 9).
16. After an anxious re-appraisal of the oral and documentary evidence in
this case I am completely in agreement with the court below. The appellant was
rightly convicted for the offence punishable under sec.55(a) of the Abkari Act.
17. What now survives for consideration is the legality and extent of the
sentence imposed on the appellant. The quantity involved is only 4 litres of illicit
arrack and the prosecution has no case that the accused is a previous offender.
Under these circumstances I am of the view that simple imprisonment for a
period of one year and fine of Rs.1 lakh would suffice.
In the result, this appeal is disposed of confirming the conviction entered,
but altering the sentence to simple imprisonment for one year and to pay a fine
of Rs.1 lakh and, on default to pay the fine, to undergo simple imprisonment for
four months.
(V.RAMKUMAR, JUDGE)
mt/-
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V. RAMKUMAR, J.
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CRL.APPEAL No.1814/2006
JUDGMENT
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23.1.2007