Babu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **TUESDAY, THE 24[TH] DAY OF AUGUST 2021 / 2ND BHADRA, 1943 CRL.A NO. 1309 OF 2007** **AGAINST THE JUDGMENT IN SC 1099/2005 OF ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT NO.II, PALAKKAD** ## **APPELLANT/ACCUSED:** **BABU AGED 29 YEARS S/O. VELAYUDHAN, THENARIPARAMBU, NARIPPOTTA, KUNISSERY, PALAKKAD DIST.** **BY ADVS. SMT.JEENA JOSEPH SRI.G.D.PANICKER** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REP. BY CIRCLE INSPECTOR OF POLICE, ALATHUR, REP. BY GOVT.PLEADER, HIGH COURT OF KERALA, ERNAKULAM** . **BY PUBLIC PROSECUTOR SRI.SANGEETHRAJ** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 24.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING** : Crl.Appeal No.1309 of 2007 2 ## **JUDGMENT** This appeal is filed challenging the conviction and the sentence imposed on the appellant in S.C No.1099/2005 on the file of the Additional Sessions Judge, Fast Track Court No.II, Palakkad. The appellant, who was the sole accused, was charged with the commission of offences punishable under Section 55(a) r/w Section 8(2) of the Abkari Act. Following trial, the appellant/accused was convicted, as charged. After hearing on the question of sentence and taking a lenient view on account of the age of the accused and family circumstances, a sentence of simple imprisonment for one year with a fine of Rs.1,00,000/- and in default of payment of fine, a further period of simple imprisonment for three months was imposed under Section 55(a) r/w 8(2) of the Abkari Act. 2. The case of the prosecution as that on 21.8.2004, at about 10.20 pm., the accused was found in possession of 4 litres of illicit arrack in a plastic can at Thrippalur-Kunissery Public Road, Narippotta, Kunissery Amsom of Alathur Taluk. 3. The prosecution adduced evidence through PWs 1 to 6 and by marking Exts.P1 to P8. The plastic can in which the arrack Crl.Appeal No.1309 of 2007 3 was allegedly carried was also identified and marked as MO1. Following the closure of prosecution evidence the accused was examined under Section 313 Cr.P.C. No oral evidence was let in on the side of the defence. One document, which is the GD entry on 21.8.2004 at 23.30 hrs. of Alathur Police Station was marked on the side of the defence as Ext.D1. 4. The appellant/accused was arrested on 21.8.2004 at 22.15 hrs by the Circle Inspector of Police, Alathur when the Circle Inspector was on patrol duty along with one Head Constable and two Police Constables. According to the prosecution, they found the appellant/accused standing in front of a tiled house on the western side of the Alathur-Kunissery Public Road with a black colour can. Though the appellant/accused tried to run away from the scene, he was apprehended by the Circle Inspector and on examination, it was found that the can contained approximately 4 litres of arrack. A mahazar was prepared on the spot and samples were taken and sealed. The samples were produced before the court on 23.8.2004 by the Circle Inspector, though the investigating officer, in this case, is the then Assistant Sub Inspector of Police. Analysing the evidence given by the Circle Inspector, one of the constables who accompanied the Circle Crl.Appeal No.1309 of 2007 4 Inspector and the investigating officer, the trial court found that the appellant/accused was guilty of the offence as charged. The case put forth by the defence that there was a delay in the production of MO1 before the court; that there is a discrepancy regarding the place of occurrence and that there is a discrepancy in the quantity of arrack seized was found not sufficient to disbelieve the prosecution case. The case put forth by the defence based on Ext.D1 GD entry that there is no entry to prove that the Police Constables who were stated to have accompanied the Circle Inspector on patrol duty, were on such duty with the Circle Inspector also did not find favour with the trial court. The trial court also found that though the independent witness did not support the prosecution case that does not result in the prosecution case being demolished. 5. I have heard Smt.Jeena Joseph, the learned counsel appearing for the appellant/accused and the learned Public Prosecutor appearing for the respondent. 6. The learned counsel for the appellant contends that the very fact that the plastic can was initially stated to contain about 4 litres of arrack and the fact that it was subsequently proved that there was substantially less quantity in the can is a sufficient Crl.Appeal No.1309 of 2007 5 circumstance to dislodge the prosecution case. She also contends that the delay in producing MO1 before the court is fatal in such cases. According to her, there is no sufficient explanation for the delay in producing MO1 before the court. She further submits that there is a discrepancy in the place of occurrence in as much as the detecting officer has clearly stated that the place of occurrence was in front of the house of the appellant/accused whereas the other prosecution witnesses have stated that it is about 30-40 meters away from the house of the accused. She also stated that the entries in Ext.D1 (general diary of Alathur Police Station) shows that the Police Constables of that station were not actually on duty with the detecting officer (PW4) on the relevant date. 7. The learned Public Prosecutor has taken me through the depositions of PWs 4, 5 and 6 to establish that the prosecution has succeeded in proving the case beyond reasonable doubt as against the appellant/accused. He also submits with reference to Section 64 of the Abkari Act that when the accused was admittedly found in possession of arrack, there is a presumption regarding the commission of an offence punishable under Section 55 of the said Act. He submits that the appellant/accused has no case that he was not apprehended while in possession of arrack since his only case Crl.Appeal No.1309 of 2007 6 is regarding the quantity in the plastic can found from his possession and other technical pleas regarding the production of MO1 etc. 8. I have considered the contentions raised by either side. The detecting officer who was the then Circle Inspector of Police has given evidence as PW4 that he together with Head Constable 2818, Police Constables 2870 and 3978 had apprehended the appellant/accused while on night patrol and that a plastic can containing approximately 4 litres of arrack was recovered from him. He has also given evidence that the appellant/accused himself admitted that the can contains arrack. He has also given evidence that on opening the can and smelling it and tasting it he was convinced that it contained arrack. Quite pertinently he has given evidence that the samples were drawn from the plastic can then and there and that a mahazar (Ext.P3) had been prepared. He also has a specific case that the seals were fixed on the samples and the plastic can. In cross examination he has specifically stated that the quantity of arrack which the can was stated to contain was not after it was measured but it was on a rough estimate. He has also stated that on seeing the police jeep, the accused had started running with the plastic can in his hand. Crl.Appeal No.1309 of 2007 7 Regarding the custody of MO1 he has clearly stated that the same was in his custody till it was produced in court on 23.8.2004. PW5, who was one of the Police Constables who accompanied the Circle Inspector (PW 4), has confirmed the evidence given in the box by PW4 in every respect. He has also given evidence that the duty details have been recorded in his notebook and the weekly diary of the Circle Inspector. He has also confirmed that the samples were drawn and appropriate seals with the alphabets 'GE' were affixed and that a mahazar was drawn then and there. He also confirmed that MO1 was in the personal custody of the Circle Inspector till it was produced in court on 23.8.2004. PW6, the investigating officer has also given evidence that he prepared the forwarding note for chemical analysis and that the chemical analysis report is the one produced in court as Ext.P8. He confirmed that he had taken the statement of the detecting officer, the Circle Inspector of Police (PW4). He stated that though the statement given by the Circle Inspector of Police does not state that the accused had tried to run away from the scene, it was specifically stated that the accused had tried to move away from the place of detection. He has also stated that the seized contraband was in the custody of the Circle Inspector of Police, the detecting officer till 23.8.2004. He also stated that MO1 was directly forwarded to the court by the Crl.Appeal No.1309 of 2007 8 Circle Inspector. As already noticed, there is no defence witness. Indeed, one of the independent witnesses, who is none other than the brother of the appellant/accused has stated that he did not witness the arrest of the accused by the police party. However, this by itself cannot dislodge the prosecution case. The Village Officer (PW1) has proved the scene plan. PW3, the attestor to the scene mahazar has also proved it as Ext.P2. On a reading of the evidence tendered by PWs 4, 5 and 6, it is quite clear that the prosecution has succeeded in proving the case against the appellant/accused beyond a reasonable doubt. In the light of the fact that the accused was found in possession of arrack, the presumption under Section 64 of the Abkari Act will also come to the aid of the prosecution. The effect of a statutory presumption has been explained by the Supreme Court in **Dhanvantrai Balwantrai Desai v. State of Maharashtra** , AIR 1964 SC 575, in the following words: - “12. ……... The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words Crl.Appeal No.1309 of 2007 9 “unless the contrary is proved” which occur in this provision make it clear that the presumption has to be rebutted by “proof” and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted.” In the facts of the present case no evidence has been let in to dislodge the statutory presumption under Section 64 of the Abkari Act. 9. The incident was on 21.8.2004 at about 22.20 hrs. There is evidence in the case that taking of samples, preparation of mahazar etc. took about one hour. There is also evidence in the case that MO1 was then brought to the police station and kept in the safe custody of the detecting officer, the Circle Inspector of Police (PW4). It cannot be disputed that MO1 was produced before the court on 23.8.2004. Therefore, I find there is no delay in the production of MO1 as suggested by the learned counsel for the appellant. 10. Regarding the discrepancy in the quantity of arrack Crl.Appeal No.1309 of 2007 10 stated to be contained in the can, I am of the opinion that in the light of the evidence tendered by the prosecution witnesses, it is clear that the stated quantity at the time of seizure was an estimation and not after measuring the same. The alleged discrepancy in the quantity, therefore, does not demolish the prosecution case in any manner. 11. The argument that there is a discrepancy regarding the place of apprehension has also been properly explained by the prosecution witnesses. The prosecution witnesses (PWs 4 and 5) have established that the appellant/accused tried to run away on seeing the police party. 12. The arguments raised based on the entries in the general diary also do not pass muster because the detecting officer (PW4) and one of the constables who accompanied the detecting officer (PW5) are quite firm in asserting that they were on patrol duty on the date of the incident and the circumstances which led to the apprehension of the appellant/accused. 13. The evidence tendered before the trial court is also specific regarding the sampling, fixing of seals, forwarding of the same for chemical analysis and the report of the analyst. Crl.Appeal No.1309 of 2007 11 14. For all the above reasons, this Court is of the view that the appellant/accused was rightly convicted for the offence punishable under Section 55(a) r/w Section 8(2) of the Abkari Act. 15. At this juncture, the learned counsel for the appellant/accused would submit that the sentence imposed on the appellant/accused is quite harsh. Considering the fact that there is no evidence that he is a habitual offender and also considering the age and family circumstances of the accused at the time of the incident, this Court is of the view that the said submission of the learned counsel for the appellant can be accepted. The offence under Section 55(a) r/w Section 8(2) of the Abkari Act attracts a minimum fine of Rs.1,00,000/- . However, the said provision does not prescribe any minimum period of imprisonment. Considering the fact that there was no evidence that the appellant/accused is a habitual offender, I am of the opinion that the sentence imposed by the trial court can be modified to simple imprisonment for three months in the place of simple imprisonment for a period of one year imposed by the trial court. 16. Thus, the conviction of the appellant/accused for having committed the offence under Section 55(a) r/w Section 8(2) of the Abkari Act is upheld. The sentence imposed on the Crl.Appeal No.1309 of 2007 12 appellant/accused is modified. The appellant/accused is sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.1,00,000/- (Rupees one lakh only) and in default of payment of fine, to undergo simple imprisonment for a further period of three months for having committed the offences under Section 55(a) r/w Section 8(2) of the Abkari Act. Needless to say, set off of periods spent in custody in connection with this case shall be permitted in accordance with law. The Criminal Appeal is allowed in part, in the manner indicated above. **GOPINATH.P JUDGE** ab