Chandrasekharan Nair v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931** ## **CRL.A.No. 1368 of 2003()** **-----------------------------------** ## **SC.10/2001 of ADDL. DISTRICT & SESSIONS (ADHOC) COURT-I, PATHANAMTHITTA** **....................** ## **APPELLANT/ACCUSED** **---------------------------------** **CHANDRASEKHARAN NAIR, AGED 55 YEARS, S/O KUNJU NAIR, MALAYILVARYATHU VEEDU, VALLIKODE MURI, VALLIKODE VILLAGE, KOZHENCHERY TALUK.** **BY ADV. MR.V.PHILIP MATHEW** ## **RESPONDENT(S):** **------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **M.N. KRISHNAN, J.** **= = = = = = = = = = = = = = = Crl. Appeal NO. 1368 OF 2003 = = = = = = = = = = = = = = = Dated this the 17[th] day of July, 2009.** ## **J U D G M E N T** This appeal is preferred against the conviction and sentence passed in S.C.10/01 of the Addl. Sessions Judge (Adhoc-I), Pathanamthitta. A case was registered against the accused for possession of 5 liters of country made arrack u/s 55(a) of the Abkari Act and later the Court framed charge u/s 58 of the Abkari Act, found him guilty and convicted him thereunder and sentenced him to undergo imprisonment for two years and to pay a fine of Rs.1,00,000/- and in default to undergo imprisonment for one year. It is against that decision the accused has come up in appeal. 2. The points that arise for determination are; - (1)Whether there are sufficient materials to hold that the - accused has committed the offence u/s 58 of the Abkari Act? - (2) In case of guilt, whether the sentence awarded is excessive? ## **Crl. Appeal NO. 1368 OF 2003** -:2:- ## **Points 1 and 2:** 3. Heard the learned counsel for the appellant as well as the public prosecutor. The learned counsel for the appellant very strongly contends before me that the materials available are totally not trustworthy to connect the accused with the crime and that the procedural formalities required under law are not complied with and the evidence of PWs.3 and 4 are not leak proof so as to rely upon them and that detection and investigation has been done by the same officer and further that the official witnesses cannot be relied upon especially in the backdrop that independent witnesses have turned hostile. 4. It is the case of the prosecution that on 30.7.98 when the Circle Inspector of Police was on patrol duty at about 5.40 p.m. they got information that somebody is selling arrack and therefore they proceeded to a rubber estate of Nanthanathu family where the accused was found in suspicious circumstances. He was intercepted, examined and he was found in possession of one white Can of 5 liter capacity and **Crl. Appeal NO. 1368 OF 2003** -:3:- glass on hand and on examination it was found that the Can contained 5 liters of illicit arrack which was got satisfied by smell and taste and thereafter sample was taken, sealed and the remaining liquor was also sealed. Thereafter the case was further proceeded with. 5. The evidence in this matter consists of the evidence of PWs.3 and 4. The initial point is Ext.P2, the seizure mahazar. Seizure mahazar is quiet elaborate and a reading of the seizure mahazar would reveal that the accused was found in suspicious circumstances and he was holding a 5 liter capacity Can in one hand and a glass on the other hand. He was intercepted, examined and 180 ml of liquid was taken out and sealed as sample, the balance liquid was also sealed. It was also found that he was having currency notes which according to the prosecution had been obtained by the sale of the illicit liquor and thereafter he was arrested and produced before Court on the next day. The detection of the case is at about 5.30 p.m. on 30.7.1998. Ext.P6 is the list of property which would indicate that the white can with remainder of ## **Crl. Appeal NO. 1368 OF 2003** -:4:- liquid, the sample bottle of 180 ml with liquid, a total of 24 currency notes, one rupee coin and 10 liter can was produced before the Court on 31.7.98. It can be further be seen that the sample was sent for chemical analysis and it is reported that the seal on the bottle was in tact and found tallied with the sample seal provided. On an analysis it was found that the sample liquid contained 32.72% by volume of ethyl alcohol. PW3 is the police constable who had accompanied the Circle Inspector of Police, PW4 and it is deposed by him that while they were coming back after conducting an enquiry in Crime No.453/98 and when they reached the place called Kaipattoor they got reliable information from a person that arrack was being sold and therefore they proceeded to that place and the accused was found and he attempted to run but was apprehended and thereafter he was searched and it was found to be illicit arrack of which sample was taken and sealed. It is also submitted that the Can, the glass and another Can were taken possession. He had been cross examined at length by the learned counsel for the accused. It ## **Crl. Appeal NO. 1368 OF 2003** -:5:- is stated in the cross-examination that the accused was holding a glass in his hand but glass was not there when he attempted to run and there was only a Can available and hence some contradictions are brought regarding the statement of possession of the glass and also whether he was apprehended while he was running or attempting to run etc. He had specifically stated about the smell and taste and also the seal affixed on the specimen seal etc. before Court. He had categorically denied the suggestion that a false case has been foisted against the accused. 6. PW4 is the Circle Inspector of Police who had detected the crime. He had also spoken as stated by PW1 about the apprehension, seizure, arrest, sampling, sealing etc. He would depose that the accused was found running with a glass and Can and there was nobodyelse at that point in that locality. He had also stated that independent witnesses were not directed to put their signature on the label. He had spoken about the seal that was used for the purpose of sealing the material objects. Then he states that the sample seal is ## **Crl. Appeal NO. 1368 OF 2003** -:6:- provided in the original forwarding note provided to the Court and what is available before Court is only a copy of the same. He had denied the suggestion that the accused was a worker in a hotel at that time. The accused was arrested at 5.45 p.m. He was also not in a position to produce him before the Magistrate on the same day and further submits that the material objects and the sample were sent to the Court on the very next day itself. Then he has also been asked about the mistakes about the quoting of the Section in the F.I.R. There was also a specific pin pointed question regarding the marks which are visible on MO1 Can etc. He had also stated that the cap found in the MO1 was not one which was there at the time of production. He had categorically denied the suggestion that a false case is foisted. 7. DW1 is the alleged employer of the accused who would say that he was an employee under him and after having the wages he had left and he had been apprehended and to his knowledge he is not a person who used to sell arrack. ## **Crl. Appeal NO. 1368 OF 2003** -:7:- 8. Learned counsel first submits about the point that the delay in causing production of the material objects before Court has really caused prejudice to the accused and therefore in a case under the Abkari Act the defence being only highly technical the Court has to give that benefit to the accused. In support of this contention he had relied upon the decision rendered by this Court in _**Damodaran v. Station House Officer (2007 (4) KHC 936)**_ and another decision. A categoric reading of those decisions will reveal the principle to be followed in these types of cases. The liquid or the illicit liquor which is taken from the possession of the accused should be the one that is sampled and sealed and that it is that sample bottle that reaches the Court and it is that sample which reached the Court is sent to the chemical analyst to connect the accused. Therefore if these factors are convincingly established the minor defect here and there should not be enlarged into a multidimensional mistake especially in the backdrop that our Courts are functioning with least infrastructural facilities and that the property room of all ## **Crl. Appeal NO. 1368 OF 2003** -:8:- the Magistrate Courts including the Sessions Court are too small whereas the thondi articles produced before Court are very large and one is dumped over the other which would certainly create problems regarding the safety of the same. It has also to be stated large number of pendency of cases also makes it impossible for the Court to take all the cases together and it will cause decay, evaporation etc. I do not say in every case this should be the procedure followed to rule out the mistake of the prosecution and shield their case. What had happened in this case can be seen is that a responsible officer like the Circle Inspector of Police had taken sample of the liquid, he had taken it in a bottle, sealed it properly and produced the same before Court on the very next day. It does not suffer from any defect or create any suspicion so as to discard the same. The case is detected somewhere in the year 1998 and the material objects were being marked in the year 2003. At that time it is seen that the cap of one is not there and one Can is broken and so it cannot be held that everything is suspicious. When the Court received the material objects **Crl. Appeal NO. 1368 OF 2003** -:9:- there is absolute presumption that the Court verifies it with the list supplied by the officials and thereafter only enters it in the property register. So there is nothing here to show that there was any sort of tampering at the hands of the police officials before it was produced, hardly within a time of about 20 hours from the date of detection. It cannot be also straight away stated that there has been tampering from the Court unless there are materials to show the same. The sample bottle which was taken was sent properly by the Court for chemical analysis and the chemical analysis report convincingly establishes that the seal in the sample bottle and the seal supplied tallied and the bottle was in tact. The learned counsel would contend that the inscription in MO1 was not seen in the seizure mahazar whereas it was seen from the Court and therefore there is a chance of substitution. It has to be stated that one seizure mahazar or a first information statement cannot be said to be the encyclopedia of everything and that anything which is omitted to be therein can be treated as fatal to the prosecution. As stated by me earlier ## **Crl. Appeal NO. 1368 OF 2003** -:10:- the principles to be followed in all these cases are to see that whether the conscience of the Court is fully satisfied that it was the liquid which was seized from the accused that has been produced before Court and sent for chemical analysis. It is to safeguard this, all the procedural formalities are laid down. In a Division Bench case reported in _**Madhavan v. Excise Inspector (2000 (1) KLT 311),**_ a Division Bench of this Court held that; “It has often been said that a mandatory enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially. 9. Here, there is evidence before the Court to show that it has been complied with not only substantially but meticulously. Learned counsel also would contend that nobody has deposed that the sample was in tact from the time of seizure that is 5.30 p.m. on 30.7.98 till it was produced before Court on 31.7.98. I am afraid that such a technicality would defeat the ends of justice unless there are materials to **Crl. Appeal NO. 1368 OF 2003** -:11:- show the possibility of a tampering. Therefore I find that the materials available are sufficient in this case. 10. It has been contended that independent witnesses had turned hostile and therefore it is also a factor to be looked into. This Court in the decision reported in _**Sivaraman v. State of Kerala (1981 KLT S.N. Case No.17 page 9)**_ held that it has become a practice that independent witnesses turned hostile for the reasons best known to them and considered the question of acceptance of the evidence of official witnesses. The Court stated that one has to take the evidence to meticulous scan and scrutinize the evidence of the official witnesses to find out its intrinsic reliability. Evidence of PWs.3 and 4 on all material points are reliable and the mere omissions and differences are nothing but natural and are on account of the delay of five years in examining them after the incident had taken place. 11. The next point argued by the learned counsel is about the detecting officer who had detected the investigation. Now it is a settled law that unless prejudice is caused that will ## **Crl. Appeal NO. 1368 OF 2003** -:12:- not also stand in the way of proceeding with the case and in cases of most of Abkari matters the real evidence is search, seizure and detection and the other is only a procedural formality of questioning the very same witnesses and filing the charge. So it has also not caused any prejudice to the accused. Therefore I do not find any reason to interfere with the decision rendered by the Court below that the accused was in possession of arrack and therefore he is rightly convicted u/s 58 of the Abkari Act. 12. Now turning to the question of sentence. The Court below itself has noted that the accused was aged 53 and he had deposed before Court at the time of hearing on sentence that he is a person who was sleeping on the verandha of bus stand at that point of time. The quantum of liquid is also not substantial or large and the accused is from a very poor financial circumstances. It is true that possession of illicit arrack is a social menace but some times the people below the poverty line resort to such methods to make their both ends meet. So one has to maintain a social balance between the ## **Crl. Appeal NO. 1368 OF 2003** -:13:- two and taking into consideration these aspects I feel justice can be met by reducing the sentence from two years to six months and the default sentence from one year to that of two months. In the result the Crl.Appeal is disposed as follows. (1) Finding of guilt u/s 58 of the Abkari Act is confirmed. (2) The sentenced is modified and he is sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.1,00,000/- in default of which he is directed to undergo a further imprisonment of two months. (3) The accused is also entitled to set off as contemplated under law. (4) The lower Court shall execute the sentence. ## **M.N. KRISHNAN, JUDGE.** ul/-