Achuthan and others v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD MONDAY, THE 3RD DAY OF MARCH 2014/12TH PHALGUNA, 1935 CRL.A.No. 2165 of 2005 ( ) --------------------------- SC 54/2005 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC) III, PATHANAMTHITTA CP 127/2004 of JUDICIAL FIRST CLASS MAGISTRATE COURT, RANNI APPELLANT(S)/ACCUSED NO.S. 1 TO 5.: -------------------------------------------------------- 1. ACHUTHAN, S/O.KRISHNAN, KOICKALETHU HOUSE, SEETHATHODE, CHITTAR VALIYATHY. 2. GOPI, S/O.RAGHAVAN, RUBBERUMKALAYIL NEELIPLAVU, CHITTAR. 3. SANTHOSH, S/O.BHASKARAN, NOORANATTU HOUSE, NEELIPLAVU, CHITTAR. 4. SURENDRAN, S/O.THANKAPPAN, MOOZHIYATTU VEEDU, ARATTU KUDUKLA, KUMARAMPEROOR VADAKKEKARAMURI, CHITTAR, SEETHATHODU. 5. VINAYABOSE, S/O.CHANDRABOSE, PUTHENVEEDU, MANPILAVU, KUMARAMPEROOR VADAKKEKARAMURI, CHITTAR, SEETHATHODU. BY ADVS.SRI.B.RAMAN PILLAI SRI.GEORGE PHILIP SRI.R.ANIL SRI.RAJU RADHAKRISHNAN SRI.ANIL K.MOHAMMED ## RESPONDENT(S)/COMPLAINANT.: ------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI K.K.RAJEEV THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J.** ## **-------------------------------------Crl.Appeal No.2165 of 2005** **-------------------------------------Dated this the 3[rd] day of March, 2014.** ## **JUDGMENT** Appeal filed under Section 374(2) of the Code of Criminal Procedure (for short, “Cr.P.C.”). 2. Appellants were convicted by the trial court in a case wherein they were charged with offences punishable under Sections 8(1) and 8(2) and 55(g) of the Abkari Act (for short, “the Act”). Prosecution case, shortly stated, is as follows: On 24.08.2003 at 4 p.m., the appellants were found manufacturing arrack by using distilling apparatus in a forest area at Manpilavu. PW6 (Sub Inspector of Police) got a phone message at about 2 p.m. that the appellants were engaged in illicit distillation of arrack. According to the prosecution case, PW6 and party went to the informed place and reached at the place at about 4.10 p.m.. On seeing the Police party, the appellants who were sitting by the side of distilling apparatus placed on a hearth, attempted to escape. Prosecution contended that four of them were arrested and two persons escaped. Later, remaining were arrested the next day and all the accused were produced before the Magistrate. 2 Crl.Appeal No.2165/2005 3. In order to establish the prosecution case, six witnesses were examined and Exts.P1 to P23 were marked. There was no defence evidence. MOs 1 to 5 were also marked. 4. Heard the learned counsel for the appellants and the learned Public Prosecutor. 5. Learned counsel for the appellants submitted that the evidence adduced by the prosecution is highly insufficient to find the guilt of the appellants. He would also submit that lacuna and improbabilities in the prosecution case should enure to the benefit of the accused. 6. Before considering the contentions raised, it will be profitable to go through the evidence in the case. PW1 is an independent witness, who did not support the prosecution case as the way they wanted it. Prosecution cited PW1 to establish that he was hailing from a nearby place where the alleged distillation was happening. He refused to support the prosecution. PW2 was working as Head Constable at the material time and he was in the party of PW6. Testimony of PWs 2 and 6 are almost in the same lines. PW6 was working as Sub Inspector of Police, Chittar Police Station, who received the information regarding the illicit distillation. Both these witnesses stated that on 24.08.2003 at about 2 p.m., PW6 got information and PWs 2 and 6 proceeded to the informed place along with two constables, PW1 and the jeep driver. The evidence would show that they parked the jeep by the side of the road and had to go on foot to the 3 Crl.Appeal No.2165/2005 informed place. When they reached at the place, they found six persons engaged in illicit distilling and they were sitting near the distillation equipments kept on a hearth. Both these witnesses deposed that they did not actually see the process of distillation. In other words, the process of distillation was over by the time they reached the place. On seeing the Police Officers, the persons who were found near the hearth took to their heels. PWs 2 and 6 deposed that four of them were apprehended and two managed to escape. It is the case of PW6 that they prepared the material documents from the place of detection itself. Then, the accused and material objects were taken to the Police Station and on the next day, to the court. PWs 2 and 6 deposed that two big barrels found at the place wherein wash was kept and 65 vessels made of tin containing wash were destroyed with contents. PWs 2 and 6 further deposed that they could find out distilled arrack secreted in the place slightly away from the hearth. They drew sample from the distilled arrack as well as from wash. 7. These witnesses were cross-examined at length. PWs 2 and 6 admitted at the time of cross-examination that the place of detection was not a familiar place. It is also suggested to these witnesses that they proceeded to the informed place through a road right in front of the Forest Station. Learned counsel for the appellants would contend that had the detection been genuinely made, the Police Officers would have sought the help of Forest Officers to identify the place. According to PW6, he did not 4 Crl.Appeal No.2165/2005 make an attempt to get the help of Forest Officers to go to the place of distillation in the deep forest. PW2 would say that PW6 talked to somebody in the Forest Station, but ultimately no Forest Officer accompanied the detecting party. Questions were put to PWs 2 and 6 regarding the lack of description of barrels and tin cans allegedly destroyed from the place. It is also suggested to PW6 that the Officers had no authority to destroy the contraband at the material time. Stated differently, non-production of wash and allegedly distilled illicit arrack is fatal to the prosecution case, contended the learned counsel for the appellants. 8. PW3 was a Police Constable, who accompanied PW6. He also testified regarding the incident almost in tune with the testimony of PWs 2 and 6. He stated that two barrels having a volume of approximately 200 litres were found at the place. He deposed that 17 litres of arrack was also found at the place. It is true that there is some dispute regarding the quantity of illicit arrack recovered from the place. Going by the oral evidence of PW3, it was 17 litres whereas, Ext.P21 thondy list would show that it is slightly lesser than the quantity mentioned by PW3. In cross-examination, PW6 admitted that there was a mistake in mentioning the quantity of illicit arrack recovered. PW3 also testified that the accused were found possessing wash and arrack at the time of their apprehension. This witness was also subjected to cross-examination. 9. PW4 was cited to prove the location of the alleged detection as 5 Crl.Appeal No.2165/2005 from a place falling within the Forest Range, Vadasserikara. PW5 was cited by the prosecution to prove that he was having acquaintance with the accused as they used to come to buy jaggery from his provision store. PW5 refused to support the prosecution case. 10. Now we shall consider the documents produced by the prosecution to establish the guilt of the appellants. Ext.P2 is the mahazar said to have been prepared from the place of occurrence immediately after detecting the offence. Learned Public Prosecutor placed reliance on Ext.P2 to bring home the guilt of the accused. Learned counsel for the appellants would contend that in Ext.P2, quantity of contraband is not mentioned. It comes for the first time only in Ext.P5, first information report (FIR). Ext.P2 would show that the detecting officer drew two sets of samples, apiece having a volume of 375 ml. in bottles. Then he drew two samples, each having a volume of 750 ml. from the wash also in two other bottles. According to the recitals in Ext.P2 mahazar, the bottles were affixed with labels to identify the articles. It is come out in evidence that at the time of trial, these labels were found missing. PW6 explained that it could have been lost due to long lapse of time. PW6 when examined as well as in Ext.P2 it is stated that since he could not carry the large quantity of wash and the barrels in which it was kept, all the containers (two barrels and 65 tin cans) were destroyed. Ext.P3 is a certificate proved through PW4. 6 Crl.Appeal No.2165/2005 11. Learned counsel for the appellants strongly relied on the contents in Ext.P5, FIR to raise the following contentions. Firstly, going by Ext.P5, it was registered at 18 hours on 24.08.2003. According to the learned counsel for the appellants, this version of the prosecution is highly improbable. Information regarding the offence was received by PW6 at 2 p.m. They reached the place of occurrence at about 4.10 p.m.. Thereafter, they conducted the search, seizure and arrest of the accused. It is also the prosecution case that they destroyed big vessels containing wash and liquor as it was difficult for them to move them out of the forest area to the Police Station. Learned counsel for the appellants would contend that the time consumed for all these formalities coupled with the fact that they had to come by walk to the main road and then proceeded to the Police Station, it could be seen that it was impossible for the Police Officers to register a crime at 18 hours. It is true that there is some force in that argument. However, the question to be considered is whether the error in mentioning time in Ext.P5 would affect the substratum of the prosecution case. This has to be appreciated in the light of the fact that the appellants have no satisfactory explanation for their presence in the deep forest and finding them by the side of a hearth on which utensils meant for distillation were placed. If we give a margin for the minor errors and omissions in the prosecution case, learned Public Prosecutor would contend that the law under Section 64 of the Act will come to the aid of the 7 Crl.Appeal No.2165/2005 prosecution. This aspect, we shall discuss in detail later. Exts.P6 to P17 are the arrest memos and inspection memos of accused persons. Ext.P18 is the remand application of accused 1 to 5 and Ext.P20 is that of the 6[th] accused. It is seen from the remand report of accused 1 to 5 that all of them were arrested from the place of occurrence. Actually the prosecution case is that accused 1 to 4 were arrested from the place of occurrence and the 5[th] accused was arrested only on the next day. Learned counsel for the appellants would contend that this fact itself will show that the alleged incident is not as stated by the prosecution. There was some complaint filed against the 5[th] accused by AVT Estate authorities. In connection with that incident, the 5[th] accused was arrested by the Circle Inspector of Police. Other accused persons resisted and questioned his arrest. It is, therefore, contended by the learned counsel for the appellants that the Police, in order to wreak vengeance, falsely implicated the accused persons in this crime. In this context, it is argued that the infirmities in the prosecution case will have to be appreciated. Learned Public Prosecutor countered this argument by saying that there is no independent evidence to probabilise this defence case of false implication. It is true that there is no definite evidence touching upon this version now raised by the learned counsel for the appellants. 12. Ext.P21 is the thondy list. It was produced on the next day of arrest. There cannot be any dispute that it was unduly delayed. Ext.P22 is 8 Crl.Appeal No.2165/2005 the copy of requisition for sending the samples for chemical analysis. That was also submitted on the next day of the alleged detection. Ext.P23 is the chemical analysis report, which shows that the contraband articles, over which seals were found to be intact, reached the chemical lab and they tested positive for arrack as well as wash. 13. Learned defence counsel contended that variation in strength of the samples analysed as per Ext.P22 proclaims the flaw in the prosecution case. It is also submitted that the report is not clear as to which sample related to which can and from which it was drawn. Learned Public Prosecutor contended that even if that fact is not established, it will not affect the strength of the prosecution case because all the samples were produced before the court and it was properly sent up in secured condition to the chemical lab. It is also submitted that all these samples tested positive for ethyl alcohol suggesting it was drawn from arrack as well as wash. The dictum in **Ravi v. State of Kerala (2011 (3) KLT 353)** cannot be pressed into service in this case, contended the learned Public Prosecutor as the entire process of sampling, sealing and handling of the contraband was without any room for a complaint that the sample might have been tampered with before it reached the chemical lab. Learned counsel for the appellants contended that Ext.P21 thondy list does not show any mentioning of markings on the contraband. It is, therefore, contended that the clarity regarding the identity of samples will cut at the 9 Crl.Appeal No.2165/2005 root of the veracity of prosecution case. As seen above, the testimony of PW6 coupled with Exts.P2, P21, P22 and P23 would show that the sample drawn from the contraband recovered reached the chemical lab without any reason to suspect genuineness. Therefore, I find that the contention of the appellant cannot be accepted on this score. 14. Learned Public Prosecutor contended based on the decision in **Biju v. State of Kerala (2012 (4) KLJ 256)** that once the recovery of contraband articles, viz., arrack and wash, is proved, then the burden cast under Section 64 of the Act would shift to the accused to show that he was not in conscious possession. Reliance is placed by the learned Public Prosecutor to the decision in **Chathukutty v. State of Kerala (2012 (4) KLT 935)** to contend that wash is a material ordinarily used in the manufacture of liquor and presumption available under Section 64 of the Act is applicable to wash as well. Statements of law in paragraphs 12 and 13 of the decision read as follows: _“12. It is also argued by the learned counsel for the appellant that there is no evidence to show that the accused was in possession of liquid knowing it to be 'wash' intended for distillation. The learned counsel submits that the presumption under S.64 of the Act is not applicable in the instant case. S.64 of the Act reads :_ ## _**“64. Presumption as to commission of offence**_ 10 Crl.Appeal No.2165/2005 _**in certain cases :-** In prosecutions under Section 55, Section 55B, Section 56A, Section 57, Section 58, Section 58A and Section 58B it shall be presumed until the contrary is proved, that the accused person has committed an offence under that section in respect of any liquor or intoxicating drug, or any still, utensil, implement or apparatus whatsoever for the manufacture of liquor other than toddy or of any intoxicating drug, or any such materials as are ordinarily used in the manufacture of liquor or of any intoxicating drug, of the possession of which he is unable to account satisfactorily; and the holder of a licence or permit under this Act shall be punishable, as well as the actual offender, for any offence committed by any person in his employ and acting on his behalf under Section 8 or Section 55 or Section 55B or Section 56 or 56A or Section 57 or Section 58 or Section 58A or Section 58B as if he had himself committed the same, unless he shall establish that all due and reasonable precautions were exercised by him to prevent the commission of such offence;_ _Learned counsel tries to explain and distinguish by saying that in S.64 the words “or any such materials as are ordinarily used” occurs after the words “other than toddy or of any intoxicating drug,” and so, the learned counsel submits that the succeeding words “or any such materials...” are intended to qualify the_ 11 Crl.Appeal No.2165/2005 _words just preceding the words or expressions mentioned above. I find no merit in that contention. The presumption applies where the accused person is prosecuted for the offence under S.55, which includes S.55(g) that it shall be presumed until the contrary is proved that the accused has committed an offence under that Section. Since S.55(g) deals with wash and other materials, according to the learned counsel, the presumption would apply only if the accused was found in possession of any still, utensil, implement or apparatus whatsoever for the manufacture of liquor. That contention is unacceptable. The words “other than toddy or of any intoxicating drug,” succeeding the word “liquor” are stated there to exclude toddy or any other intoxicating drug from the word “liquor”. The contention raised by the accused that 'wash' is not a material at all does not gain ground in view of what have been stated earlier. The words “or any such materials as are ordinarily used in the manufacture of liquor” would make it abundantly clear that wash which is a material ordinarily used in the manufacture of liquor would certainly be covered by the presumption contained in S.64 of the Act._ _13. It has already been said that wash is a material used for manufacture of liquor. The fact that in S.55 (g), the word “materials” precedes the other words “still, utensil, implement etc.” and that the very same_ 12 Crl.Appeal No.2165/2005 _word “materials” is used in S.64 succeeding “utensil, apparatus etc.” would make no difference. The first part of S.64, so far as it relates to S.55(g) of the Act is concerned, deals with still, utensil, implement or apparatus whatsoever used_ _**“for** the manufacture of liquor' . They are not materials with which liquor can be manufactured. In other words, they are not ordinarily used_ _**“in** the manufacture of liquor”. So far as 'wash' is concerned, it is a material ordinarily used_ _**“in** the manufacture of liquor”. The word_ _**“for** ” used in the earlier part and the word_ _**“in** ” occurring in the later part would make the position clear that so far as 'wash' is concerned, it is a material ordinarily used_ _**in** the manufacture of liquor; to mean; liquor can be manufactured from out of 'wash'. Utensils, implement, apparatus etc., are used in the process of manufacture of liquor, i.e;_ _**“for** the manufacture of liquor”. Still, utensil, implement etc. are not materials with which liquor can be manufactured. In other words, they are not materials used_ _**“in** the manufacture of liquor”. The words are used disjunctively. It is not intended to exclude 'wash' from the purview of S.64 of the Act. It is pointed out by the learned Public Prosecutor that the liquor defined in S.2(10) of the Act means “liquid consisting of alcohol”. Therefore, wash also comes within the definition of 'liquor'._ 15. The evidence adduced in this case would lead to an irresistible 13 Crl.Appeal No.2165/2005 conclusion that the appellants were found in the forest area sitting by the side of equipments meant for distilling illicit arrack. There is no satisfactory explanation for their presence at the informed place within a forest. Contention of the appellants that they were falsely implicated and four of them were not arrested from the place of alleged commission of offence cannot be believed. The defence case that they were trapped in such a case is also not believable. Therefore, I find that the court below rightly convicted the appellants for the alleged offences punishable under Sections 8(1) and 8(2) and 55(g) of the Act. 16. Considering the sentence part of the judgment, I find that the court below imposed separate punishments under Sections 8(2) and 55(g) of the Act and it was directed that they should run consecutively. I find that this portion requires interference. Therefore, the sentence is modified as under. In the result, the appeal is partly allowed. Conviction of appellants under Section 8(2) read with Section 8(1) and 55(g) of the Abkari Act in S.C.No.54 of 2005 on the file of Additional Sessions Court (Adhoc-III), Pathanamthitta is hereby confirmed. The appellants shall undergo simple imprisonment for a period of one year and pay a fine of `1,00,000/- (Rupees one lakh only) under Section 8(2) of the Abkari Act. In default of payment of fine, they shall undergo simple imprisonment for a period of six months. The appellants shall undergo simple imprisonment 14 Crl.Appeal No.2165/2005 for a period of one year and pay a fine of `1,00,000/- (Rupees one lakh only) under Section 55(g) of the Abkari Act. In default of payment of fine, they shall undergo simple imprisonment for a period of three months. The substantive sentences shall run concurrently. They are entitled to get the benefit of set off under Section 428 Cr.P.C. All pending interlocutory applications will stand dismissed. ## **A. HARIPRASAD, JUDGE.** **cks**