B.Subhash v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **FRIDAY, THE 31ST OCTOBER 2008 / 9TH KARTHIKA 1930** **CRL.A.No. 81 of 2004()** **-------------------------------** **SC.484/2000 of ADDL.SESSIONS COURT (ADHOC), KASARAGOD** **....................** **APPELLANT(S): ACCUSED** **--------------------------------------** **B.SUBHASH, S/O.BABU POOJARI, AGED 32, KALATHUR, KIROOR VILLAGE, KASARAGOD TALUK.** **BY ADV. SMT.R.PADMAKUMARI** ## **RESPONDENT(S): PROSECUTION** **-----------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. P.A.SALIM** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **V.K.MOHANAN J** **- - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No.81 of 2004** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 31[st] day of October, 2008.** ## **J U D G M E N T** This appeal is filed at the instance of the accused in Sessions Case No. 484 of 2000 of the Court of the Additional Sessions Judge (Ad-Hoc-1), Kasaragod, challenging the conviction and sentence imposed against him under Section 55(a) of the Abkari Act. 2. The prosecution case is that on 26.10.1999 at 7.05 p.m. the accused was found in possession of 4 full bottles of original Choice Delux Whisky and 5 full bottles of Bagpiper Whisky in two plastic bags against the provisions of the Kerala Abkari Act near Thalappady Bus stand in Kunjathur village. On the basis of the said allegation, crime was registered in the Manjeswaram Police Station as Crime No. 263 of 1999 for the offence under Section 55(a) of the Abkari Act. After completing the investigation, PW2, S.I. of police laid the charge in the Court of the Judicial First Class Magistrate, Kasaragod, where C.P.No.382/1999 was instituted **Crl. Appeal No.81 of 2004** **- 2 -** and subsequently the case was committed by the order dated 3.3.2000 of the learned Magistrate and the case made over the case to the Assistant Sessions Court, Kasaragod, from there it was subsequently withdrawn and transferred to the Trial Court for disposal. 3. When the accused appeared pursuant to the process issued from the Trial Court, after hearing him a formal charge was framed under Section 55(a) of the Abkari Act and read over and explained to the accused to which he pleaded not guilty which resulted in the further trial, during which PWs 1 and 2 were examined from the side of the prosecution and marked Exts.P1 to P5 as documentary evidence. When the accused was questioned under Section 313 of the Cr.P.C, he denied all the incriminating circumstances came out in evidence. Finally the Court found that the accused is guilty under Section 55(a) of the Abkari Act and thus he was convicted for the said offence and on hearing him, the accused is sentenced to undergo rigorous imprisonment for 3½ years and to pay a fine of Rs.1,00,000/- and default sentence is fixed as further period of three months rigorous imprisonment. Set off was also allowed. It is the above **Crl. Appeal No.81 of 2004** **- 3 -** conviction and sentence challenged in this appeal. 4. I have heard the learned Counsel for the appellant and also the Public Prosecutor. 5. The case of the prosecution is revealed through the evidence of PWs 1 and 2. PW1 is the then Head Constable of the Manjeswaram Police Station who was accompanying the Detecting Officer, PW2. PW1 has deposed that on 26.10.1999 at 6 O'clock, he was along with PW2 for law and order duty and at 7.05 p.m.. they reached near Thalappady bus stand and the accused was seen on the eastern margin of the National Highway with two plastic bags in both hands. According to PW1, on inspection of the bags, the contraband articles were found and accordingly he was arrested from the spot and samples were taken and the contraband articles were seized. Sampling and seizure of the contraband article were elaborately stated in Ext.P1 seizure mahazar which was prepared at the spot. Though PW1 was cross-examined, nothing was brought out to discredit his version. PW2 is the Sub Inspector of the Manjeswaram Police station who detected the crime and conducted the investigation and filed charge. He had also deposed in terms of the prosecution **Crl. Appeal No.81 of 2004** **- 4 -** evidence. The oral evidence given by PW1 and PW2 are mutually corroborative and in full support of the prosecution case. According to PW2, Ext.P2 FIR and Ext.P1 seizure mahazar were produced before the Court at around 12.15 P.M on the next day, i.e., 27.10.1999 PW2 gave a detailed account about the contraband article and its seizure and other details of the liquor. During the trial, the defence took a contention that the case of prosecution about detection and preparation of seizure mahazar are false as there was no sufficient light to prepare the mahazar as claimed by the Prosecution at the time of the alleged seizure. The defence tried to establish the case on the basis of the deposition made by PW2 to the effect that there was a work shop near to the spot from where the contraband article were seized, and according to PW2, there were no workers in that workshop as it was night time. So, according to the defence there was no sufficient light for preparation of Mahazar and therefore the case put forwarded by the prosecution is belied. But in the deposition of PW2 it is stated that they reached at the spot in a police jeep and the jeep was having head light and top light and they were having torch also. Thus PW2 categorically stated that the accused **Crl. Appeal No.81 of 2004** **- 5 -** was seen on the road side in the head light of the jeep. With respect to the evidence of PW2 also there is no material contradiction and between the oral evidence of both PW1 and PW2 also there is no contradiction at all. Thus the Court below found that the accused is guilty of the charge levelled against him. 6. The learned Counsel for the appellant submitted that Ext.P5 chemical analysis report is marked during the trial without examining the expert who issued the report and, according to him due to the non-examination of the expert the trial is vitiated and the judgment of the trial court is liable to be set aside. In support of the above submission, the learned Counsel relies upon the decisions reported in **State of Rajasthan v. Boulat Ram** (AIR 1980 SC 1314) and **State of Kerala v. Arun Valenchery** (2001 (3) KLT 860) etc. It is also argued by the learned Counsel that even according to the prosecution case, they have no allegation that the accused was found in possession of any prohibited liquor or illicit arrack. The learned Counsel pointed out that the possession of Indian made foreign liquor is permissible, but subject to the quantity permitted by the Rules and notification. According **Crl. Appeal No.81 of 2004** **- 6 -** to the learned Counsel, the trial court has not considered the above aspect while passing the above judgment. The learned Counsel also pointed out that thus going by the allegation of the prosecution it can be seen that the only allegation is that accused was found in possession of Indian made foreign liquor in excess of the permissible quantity. But according to the Counsel, the sentence imposed is disproportionate to the allegation and is also exorbitant. 7. The learned Public Prosecutor submitted that the possession of the Indian made foreign liquor has been proved by the prosecution beyond reasonable doubt and no proper defence was taken and substantiated by the defence that the same was obtained in the legal manner and also failed to show the authority for the possession of such huge quantity of the contraband article. Therefore according to the learned Public Prosecutor, no interference is called for. 8. I have heard the contentions of both the counsel for the appellant as well as the learned Public Prosecutor. In view of Section 293 of Cr.P.C., there is no illegality in accepting Ext.P5 Chemical Analysis Report and acting upon the same without examining the authority who issued the **Crl. Appeal No.81 of 2004** **- 7 -** same. In the light of the decision in **Visakha Agro Chemicals (P) Ltd. v. Fertiliser Inspector-cum-Assistant Director of Agriculture (Regular),** (1997)2 Crimes 648 (AP), the certificate issued by any of the authorities mentioned in Section 293 of Cr.P.C. can be accepted and acted upon even without examining such authority. It appears that when Ext.P5 was marked during the trial, no serious objection was raised from the side of the defence. It is also relevant to note that if the defence has any objection, they could have taken steps to examine the expert during the defence evidence. But no such steps were taken. In the light of Section 293 the examination of the expert is not necessary and the same is also not much relevant in the present case considering the defence taken by the accused. According to the accused, the seized contraband article is only the Indian made foreign liquor and the possession of the same is not an offence and the only allegation is the possession of excess quantity beyond the permission. That being so, there is no such importance and relevance in the contention raised by the defence on the basis of Section 293 (2) of Cr.P.C. In the light of the evidence adduced by the prosecution, especially, **Crl. Appeal No.81 of 2004** **- 8 -** through the oral evidence of PWs 1 and 2 and other documentary evidence such as Exts.P1 to P5, I am of the view that the trial court has rightly found that the accused was guilty of offence charged against him and there is no reason to interfere with the above findings. 8. With regard to the sentence, the learned Counsel submitted that the appellant/accused did not engage in any acts which prohibited by any law including the provisions of the Abkari Act and the possession of Indian made foreign liquor is permissible. It is pointed out that as per the Rules and Provisions as on the date of the alleged occurrence, accused was entitled to possess certain quantity of Indian made foreign liquor, and therefore, even if the entire prosecution case is admitted, the only violation disclosed is that the accused had possessed excess quantity of Indian made foreign liquor. According to the Counsel, for the above offence, the sentence imposed on the appellant/accused is highly exorbitant and disproportionate to the offence alleged. Considering the totality of the circumstances involved in the case and considering the fact that the appellant was found in possession of Indian made foreign liquor and that too more **Crl. Appeal No.81 of 2004** **- 9 -** only excess quantity beyond the permissible limit, I am of the view that certain modifications can be effected with respect to the sentence imposed. It is submitted that the accused has already undergone rigorous imprisonment for a period of 3 months and 23 days. 9. In the light of the facts mentioned above, by confirming the conviction for the accused of offence under Section 55(a) of the Abkari Act, his sentence is reduced to two months rigorous imprisonment. Since the sentence of fine is limited to only Rs.1,00,000/-, which is the minimum amount, no interference is called for but the default sentence is refixed as one month. Accused/appellant is eligible to set off under Section 428 of Cr.P.C. Bail bond if any, executed by him is stand cancelled. Accordingly, appeal is dismissed subject to the above modification in sentence. ## **V.K.MOHANAN, JUDGE** rhs