IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1009 of 2002()
1. ROY GEORGE, S/O. GEORGE
... Petitioner
Vs
1. STATE OF KERALA REP.BY PUBLIC
... Respondent
2. CIRCLE INSPECTOR OF POLICE, ERATTUPETTA.
For Petitioner :SRI.K.N.CHANDRABABU
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :21/05/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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Crl.A.No.1009 of 2002
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Dated: 21st May, 2009
JUDGMENT
Accused is the appellant. He was prosecuted for the offences
punishable under Section 55 (a) and (i) of the Kerala Abkari Act (for
short, ‘the Act’), on a report filed by the Circle Inspector of Police,
Erattupetta. He had pleaded not guilty to the offences. The learned
Additional Sessions Judge, after trial, found him guilty of the offence
under Section 55(a) of the Act and thereupon, convicted him of that
offence. He was sentenced to undergo rigorous imprisonment for
three years and to pay a fine of Rs.1 lakh with default term of simple
imprisonment for 60 days. He was found not guilty of the offence
under Section 55 (i) of the Act and acquitted of that offence.
Aggrieved by the conviction and sentence imposed for the offence
under Section 55(a) of the Act, questioning its legality, propriety and
correctness, he has preferred this appeal.
2. The prosecution case, in brief, is that on the evening of
13.10.2000, while PW4, the S.I. of Police, Thidanadu Police Station,
with a police party was engaged in patrol duty in a jeep within the
jurisdiction of his station, he found the accused in a public pathway
beside Kunnumpuram carrying a can and a plastic bottle. Seeing the
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police jeep, the accused got preplexed and attempted to make
himself scarce. He was intercepted and the can and the bottle in his
possession were examined. The can contained 2.5 litres and the
plastic bottle 1.5 litres of arrack. Samples of 350 ml each were
collected from the can and the plastic bottle separately in two bottles,
and sealed at the spot. Samples collected and the residue were
seized into custody, preparing Ext.P1 mahazar. The accused was
arrested; and, returning to the Station with him and the contraband
seized, Ext.P4 crime was registered for the offences punishable
under Section 55 (a) and (i) of the Act. The accused, after
production before the court, was enlarged on bail. The investigation
of the crime was taken over by PW5, then, Circle Inspector of Police,
Erattupetta, and after completing the investigation, he laid the charge
indicting the accused for the offences punishable under Section 55 (a)
and (i) of the Act.
3. After committal of the case to the Sessions Court, Kottayam,
and it being made over to the Additional District and Sessions Judge
Fast Track Court (Adhoc) -II, Kottayam, for trial and disposal the
accused pursuant to the summons appeared before that court. The
learned Sessions Judge, after complying with the formalities, framed
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charges against the accused for the offences under Section 55 (a)
and (i) of the Act, to which he pleaded not guilty. Prosecution
examined Pws.1 to 5, got marked Exts.P1 to P5 and identified Mos1
and 2 to prove his case. The accused, when questioned under
Section 313 Cr.P.C., inviting his attention to the incriminating
circumstances appearing in the prosecution evidence against him
seeking explanation, if any, thereof, maintained his innocence and
set forth the defence that the case has been foisted against him on
false allegations in view of political animosity. Though such a defence
was canvassed, no evidence was adduced in support thereof.
4. The learned Additional Sessions Judge, after considering the
materials produced in the case, found the accused guilty of the
offences under Section 55 (a) of the Act, and he was convicted of that
offence and sentenced as indicated above. The other offence
imputed under Section 55 (i) of the Act was found not established
and he was acquitted of that offence.
5. I heard the learned counsel for the accused and also the
learned Public Prosecutor. Conviction of the accused for the offence
under Section 55 (a) of the Act is assailed by the learned counsel
contending that it is thoroughly unsustainable as not supported by
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legal evidence. There was no evidence in the case other than that of
the police officials to connect the accused to the crime; and, in view
of the specific defence raised by the accused that he had been falsely
implicated and the case had been foisted against him on account of
political animosity it is submitted that the court below went wrong in
founding the conviction against him on the basis of the evidence of
the police officials alone without corroboration from any other
independent evidence. Submitting Pws.1 and 2, the two independent
witnesses cited by the prosecution to prove the seizure had turned
hostile to its case it is also canvassed by the learned counsel that a
vital material circumstance in the evidence discredit the prosecution
case. Inviting my attention to the evidence of PW3, the police
constable, who accompanied PW4, the S.I. of Police and was present
when the detection of the offence and the seizure of the contraband
were made, the learned counsel for the accused submitted that the
witness had given a conflicting version that the arrack was carried by
the accused in a ‘jar’ whereas, the prosecution case was it was a
‘can’. There is much difference between the jar and a can, contends
the counsel. The material discrepancy regarding the vessel in which
the arrack was alleged to have been kept by the accused, in his
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possession, according to the counsel, cuts at the root of the
prosecution case. The evidence of PW3 would also indicate,
according to the counsel, two pint bottles collected from a nearby
house had been used for collecting samples from the contraband
seized. Presence of ethyl alcohol in the pint bottles used for
collecting samples could not be ruled out, and as such, the procedure
followed in the case for collecting samples was highly irregular and
illegal and it has vitiated the trial, is the submission of the learned
counsel. There was inordinate delay in the production of the
contraband before the court, for which, no explanation was offered, is
another challenge raised by the counsel to assail the conviction.
Contraband was seized on 13.10.2000, but, it reached the court only
on 21.11.2000, and the analysis over the sample forwarded to the
laboratory through the court was carried out a month’s later, submits
the learned counsel. The explanation offered by PW4, the S.I. of
Police, that he had retained the contraband till its production before
court does not lend assurance to hold that the residue and sample
remained untampered, and the long delay in the production of the
contraband before the court, according to the learned counsel, is a
materials circumstance vitiating the trial as well. The learned counsel
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relied on Dominic v. State of Kerala (1989 (1) KLT 601), Narayani
v. Excise Inspector (2002 (3) KLT 725), Rajendran v. State of
Kerala (2007 (1) KLT 971) and Muraleedharan v. S.I. of Police
(2007 (2) KLT 662) to contend that consistently this Court has taken
a view that delay in production of the contraband seized and sample
collected before the court and sending of the sample for analysis, is
fatal to the prosecution case unless such delay has been properly
explained to vouchsafe that the residue and sample remained in safe
custody untampered till its production before the court. The
prosecution in the present case has not offered any explanation for
the delay in production of the residue and the sample, according to
the counsel. The delay caused in production is fatal to the case and
the conviction is liable to be set aside on that ground as well.
6. I have perused the records of the case giving consideration
to the submissions made by the learned counsel. I cannot agree with
the proposition canvassed by the learned counsel that the evidence of
the police officials for its acceptance require corroboration from
independent witness simply for the reason that the accused had
raised a contention that the case had been foisted against him on
account of political animosity. Merely because the witnesses are
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police officials, their evidence cannot be viewed with doubt or
suspicion on a plea set up by the accused that he had been framed in
the case. It is for the accused to show that there is some basis for
such a defence and in case he succeeds in showing any circumstance
on the materials produced that the case pleaded by him is probable,
then, ofcourse, the evidence of the police officials has to be subjected
to critical scrutiny for its acceptance. A vague plea or suggestion
without anything more imputing that the accused had been framed
deserve to be taken note of only for its rejection. The evidence of
police official deserve to be appreciated applying the same yardstick
as in the case of any other witness examined before the court. The
learned Sessions Judge, who had recorded the evidence of Pws.3 and
4 had found their testimony reliable, trustworthy and acceptable.
Nothing worthmentioning has been brought out during the cross
examination of those witnesses to indicate that any of them had any
grouse or animosity towards the accused. Suggestion made to PW4
that the case has been foisted against the accused on account of the
pressure from a ruling party was refuted by that witness. Both Pws.3
and 4 have given evidence before the court that the accused was
apprehended on finding him with possession of a can and plastic
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bottle, both, containing illicit arrack, in a public pathway. Their
evidence is corroborated by Ext.P1 mahazar, a contemporaneous
record prepared over the seizure of the contraband. The attestors of
Ext.P1 mahazar had turned hostile in no way affect the merit of the
prosecution case. There is some discrepancy in the evidence of PW3
with respect to one of the vessels carried by the accused, as
canvassed by the learned counsel, is found to be of no merit. PW3
had referred to the can as a jar while giving evidence before court
was projected to contend that it amounts to a serious discrepancy.
He has identified MO1 jar and also MO2 plastic bottle before the
court. Reference to the can as jar by PW3, it could be seen, was only
a colloquial usage of that vessel. When PW3 was in the box no
attempt was made to show that can and jar are different, and jar
referred by him in his evidence does not relate to the can seized from
the accused, which was identified by him as MO1. The argument
advanced that there is discrepancy regarding one of the vessels in
which the contraband was carried, in the evidence of Pw3, has no
basis or value at all. The delay in production of the contraband
before the court is fatal to the prosecution and it has vitiated the trial,
the challenge raised by the counsel to assail the conviction, also
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cannot be accepted as true and correct. Mere delay without anything
more is hardly sufficient to vitiate the trial. What prejudice, if any,
has been caused to the accused by such delay in production also
requires to be examined. In the present case, PW4, the S.I. of police
has given evidence that the contraband remained in his safe custody
till its production before the court. There was no reason to doubt his
evidence that it remained in his safe custody and there was no
tampering till its production. At any rate, no circumstance
whatsoever is available in the records nor shown that, any prejudice
has been caused to the accused by the delay in production of the
contraband before the court. So, that challenge raised by the
counsel to assail the conviction also fails. The proved facts and
circumstances of the case reveal in unmistakable terms that the
accused carried in his possession arrack, a prohibited contraband,
without any authority. Ext.P4 analysis report would show that one of
the vessels contained spirit and the other arrack. Accused has not
accounted for the possession of the contraband seized from his
custody and in such circumstances, his conviction under Section 55
(a) of the Act by the court below deserves only to be upheld, and I do
so.
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7. As regards the sentence, having regard to the age of the
accused, the quantity of liquor seized from his possession, and also in
the records there is nothing to indicate that he is not a first offender,
the substantive term of imprisonment imposed by the learned
Sessions Judge can be reduced limiting it to one year, retaining the
mandatory fine with default term with imprisonment. So much so,
sentence imposed against the accused is modified, directing him to
undergo rigorous imprisonment for one year and to pay fine of Rs.1
lakh with default term of simple imprisonment for two months more
for the offence under Section 55 (a) of the Act.
The appeal is partly allowed.
srd S.S. SATHEESACHANDRAN, JUDGE