Appukuttan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY,THE 10TH DAY OF OCTOBER 2018 / 18TH ASWINA, 1940** ## **CRL.A.No. 502 of 2006** **AGAINST THE JUDGMENT IN SC 1837/2002 of III ADDL.SESSIONS JUDGE, KOLLAM DATED 14-02-2006** **APPELLANT/ACCUSED:** **APPUKUTTAN,S/O.KOCHATHAN, KANNETHARAYIL VEEDU, THODIYOOR MURI, KARUNAGAPPALLY, KOLLAM DISTRICT.** **BY ADV. SRI.B.MOHANLAL** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE EXCISE RANGE INSPECTOR, KARUNAGAPPALLY, KOLLAM DISTRICT THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** ## **OTHER PRESENT:** **SR.PP. SRI. D. CHANDRASENAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRL.A.No. 502 of 2006** **2** ## JUDGMENT This appeal is directed against the judgment dated 14.02.2006 in SC No.1816/2002 on the files of the III Additional Sessions Judge, Kollam (for short 'the court below'). The appellant is the sole accused involved in the case. He was tried and found guilty by the court below for the offence punishable under Section 8(2) of the Abkari Act (for short 'the Act') and convicted and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1 lakh and in default to undergo rigorous imprisonment for six months. 2. A secret information was obtained by the preventive officer of Excise Circle Office, Karunagappally at 12.30 p.m. on 10.07.1999 that illicit arrack was kept in the house bearing No.TP 13/286 belongs to one Mr.Appukuttan, Kannetharayil Veedu, Thodiyoor Muri, Thodiyoor Village, Karunagappally. After preparing a search memorandum and forwarding the same to the court, he proceeded to the spot as informed along with excise-men. They reached the spot and identified the house bearing No.TP 12/286 (mistakenly informed as TP 13/286). The accused was available there. A search was conducted in the house. On the eastern corner of the bedroom a lungi, blue in colour, was found kept **CRL.A.No. 502 of 2006 3** folded. The same was opened and examined. 9 plastic covers, each containing about 150 ml of liquor was found kept inside. One cover was opened. The liquor contained therein was examined by tasting and smelling and was convinced as illicit arrack. The accused was arrested and the factum of arrest was informed to his wife Smt.Thankamani. Arrest memo was prepared and independent witnesses gathered were made to affix their signatures therein. The ration card of the accused was procured and examined. A search list was prepared and got attested by independent witnesses and the accused. Sample was taken in a 150 ml bottle and was labelled and sealed. The remaining 8 packets of arrack and the broken packet along with the lungi were taken into custody, after affixing seal thereon. The accused and the properties seized from the spot were taken to the Excise Range Office, Karunagappally. Crime and occurrence report was prepared. Property list and forwarding note were also prepared and the properties and the accused have been produced before the Judicial First Class Magistrate Court, Karunagappally on the very same day. Accused was remanded to judicial custody. The contraband remained after drawing sample was sent to the Excise Office by order dated 13.07.1999 of the Magistrate for want of **CRL.A.No. 502 of 2006 4** space in the Court concerned. On the very same day, sample was forwarded to the Chemical Examiner's Laboratory for analysis. The same was examined by the Chemical Examiner and a certificate of analysis was forwarded to the Court. Investigation was conducted by the Excise Inspector of Excise Range Office, Karunagappally. On concluding the investigation, a final report was laid before the Judicial First Class Magistrate Court, Karunagappally. 3. Having found that the offence allegedly involved is exclusively triable by a Court of Sessions, the case was committed to the Court of Sessions, Kollam, which made over the same to the court below for trial. Process was served on the accused and he entered appearance. After a preliminary hearing of both the prosecution and the defence, charge was framed against the accused for the offence punishable under Section 8(2) of the Act. The charge was read over and explained to the accused, to which he pleaded not guilty. Accordingly, the trial was held. 4. On the side of the prosecution, witnesses were examined as PWs 1 to 6, documents were marked as Exts.P1 to P9 and the properties were marked as MO1 to MO3. On closure of the evidence of the prosecution, the accused was questioned with reference to the incriminating circumstances brought on record by **CRL.A.No. 502 of 2006 5** the prosecution. He denied all the incriminating questions put to him and raised a specific plea that he was falsely implicated. Reasons having not been made out to record an order of acquittal, the accused was called upon to enter on his defence. He does not adduce any evidence. The prosecution as well as the defence were heard and a finding that the accused is guilty of the offence under Section 8(1) of the Act was arrived. Thereupon he was convicted and sentenced to undergo the punishment imposed vide the judgment under challenge. The aggrieved accused has come up in appeal against the judgment seeking to set it aside. 5. Sri.B. Mohan Lal, the learned counsel for the appellant has contended that the court below has thoroughly failed to appreciate the evidence in the proper perspective and the judgment under challenge suffers for the reason. Secondly, it was contended by the learned counsel that though the quantum of the sample taken from the contraband was stated by the preventive officers of Excise Range Office, Karunagappally as approximately 125 ml, at the time when it was received by the Chemical Examiner's Laboratory, the quantum was reported as 150 ml. According to the learned counsel, in view of the change in quantum, the sample of the contraband examined by the Chemical Examiner cannot be taken **CRL.A.No. 502 of 2006 6** as the sample drawn from the contraband at the spot of seizure as alleged by the prosecution and accordingly it's case fails. 6. It is contended thirdly by the learned counsel that the prosecution case suffers for want of forwarding note marked in evidence. The learned counsel placed reliance on **Majeedkutty v. Excise Inspector** [2015(1) KLT 624] to support his argument that the trial is vitiated for the reason. The contention fourthly advanced by the learned counsel was that the Preventive Officer of Excise Range Office, Karunagappally has proceeded to the spot on getting a secret information that illicit arrack was kept in the house of the accused. Therefore, it is mandatory for the officials to obtain a search warrant or in case it is felt by them that the time taken to obtain the search warrant would defeat the purpose, to prepare a search memorandum and forward the same to the court. In the case on hand, though the preventive officers deposed to have prepared a search memorandum, the same is not available in evidence adduced by the prosecution. According to the learned counsel, such being the circumstances, the conclusion safely be reached was that search memorandum was not prepared by the officials, as claimed by them. Raising arguments as aforesaid, the learned counsel urged that the judgment under challenge is a fit **CRL.A.No. 502 of 2006** **7** one to be interfered with and reversed. 7. The learned Public Prosecutor attacked the contentions raised by the learned counsel for the defence and submitted that none of those would sustain. According to him, the court below has appreciated the evidence of the prosecution in its proper perspective and arrived at the finding of guilt against the accused. According to the learned Public Prosecutor, there is absolutely no delay in forwarding the contraband to the court and further to the Chemical Examiner's Laboratory and therefore, there cannot be any doubt about its identity. According to him, the case on hand is one in which the mandatory requirements contemplated by the Act are complied with and interference of any nature is totally unwarranted. 8. Bearing the rival contentions in mind, this Court ventured to appreciate the evidence on record. It is established from the materials available that two independent witness cited by the prosecution were examined before the court below and they turned hostile. PWs 3 and 5 were the official witnesses, who had proceeded to the spot after obtaining an information. PW3 is the detecting officer in the case on hand. He is none other than a preventive officer attached to the Excise Range Office, **CRL.A.No. 502 of 2006 8** Karunagappally. According to him, the information obtained was that illicit arrack was kept in the house belonging to the accused and therefore, a search memorandum was prepared and forwarded to the Court. PW5 is an officer who accompanied PW3 to the spot. His version with regard to the preparation of Search Memorandum before proceeding to conduct the search of the house of the accused finds corroboration with that of PW3. PW5 has also spoken about the preparation and forwarding of the search memorandum to the Court. Witnesses PW3 and PW5 had also deposed in terms corroborative that the blue lungi kept folded at the eastern corner of the bedroom was opened in the presence of the independent witnesses and 8 packets of liquor were seized. According to each of them, approximately 125 ml liquor was taken in a 150 ml bottle as sample and both the sample as well as the remnant packets containing liquor were affixed with seal and labels after obtaining the signatures of the independent witnesses and the accused thereon. The accused was arrested after preparation of arrest notice and serving a copy of the same on the wife of the accused. PWs 3 and 5 corroborate on material aspects as stated above. It is evidenced from the version of PW3 that both the accused and the properties seized from the spot were produced by **CRL.A.No. 502 of 2006 9** him to the office of the Excise Range Office, Karunagappally. There, a crime and occurrence report was prepared. The remand report, property list and the forwarding note were prepared by him and produced along with the accused before the Court on the day itself. From the endorsement in the property list marked in evidence as Ext.P7, it is clear that those have been received by the Court on the very date itself. Another endorsement found in Ext.P7 was that except the sample, other properties have been sent back to the Excise Inspector for keeping those in his safe custody. It is evidenced from Ext.P9, Certificate of anlaysis that the sample of the contraband was received by the Chemical Examiner on 13.07.1999. It is further revealed from Ext.P9 that the sample at the time of production before the Chemical Examiner's Laboratory was found with the seals thereon in tact and tallied with the sample seal forwarded. It is true that the forwarding note is not produced before the Court and marked in evidence. But the nonproduction of the forwarding note by itself would not defeat the case of the prosecution. In **Majeedkutty** 's case (supra) want of forwarding note in evidence was considered by a learned Single Judge of this Court as a material flaw in the backdrop of the delay of more than 7 months taken in forwarding the sample to the **CRL.A.No. 502 of 2006 10** Chemical Examiner for analysis. There was absolute want of evidence in that case to establish safe custody of the properties after its seizure for the period by which production of those was delayed. Being so, in **Majeedkutty** 's case (supra), the learned single Judge held that the non-marking of forwarding note is crucial and would defeat the prosecution case. In the case on hand, the production of the properties before the court and further to the Chemical Examiner's Laboratory, was without any delay. PWs 3 and 5 have also stated categorically that properties have been taken into custody after affixing seal. They have not been controverted on the said aspect by the defence. Therefore, nonmarking of forwarding note in evidence in the case on hand cannot be taken to have much relevance and that would not materially impact the case of the prosecution. 9. This is a case wherein the official witnesses have deposed corroboratively about the material aspects of the prosecution case. Statutory formalities have also been strictly complied with by the officials of the Excise. There is absolute want of delay in production of the properties before the Court as well as the Chemical Examiner's Laboratory. The arrest of the accused was also done after strictly complying with the procedural formalities. **CRL.A.No. 502 of 2006 11** Therefore, interference with the finding of guilt of the accused is totally uncalled for. 10. At this juncture the learned counsel for the appellant has pleaded for a modification of the substantive sentence by reducing the same. The reason stated by the learned counsel for raising such a plea was that the accused has now reached the age of 73 years and has ailments of old age. According to her, the accused was a man without any criminal antecedents of similar nature in his credit. 11. The learned Public Prosecutor failed to point out to this Court, existence of anything on the contrary. Going by the impugned judgment also I am convinced that the accused is devoid of any criminal antecedents. As per the impugned judgment the accused was sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for six months. Considering the contentions of the learned counsel, I am inclined to modify the substantive sentence by reducing the same to rigorous imprisonment for six months. With regard to the imposition of fine, this Court is barred by the Act from exercising any discretion and therefore, it is maintained. In view of the reduction in the **CRL.A.No. 502 of 2006 12** substantive sentence, a corresponding reduction in default sentence is also warranted. Therefore, the default sentence is reduced and fixed as simple imprisonment for two months. The other directions, if any in the impugned judgment are maintained. The court below shall issue necessary compulsive measures to procure the presence of the accused before the Court and see that the sentence imposed is executed, against him without further delay. **Sd/-** **MARY JOSEPH JUDGE** ttb