C.N. Prakash v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.UBAID** **WEDNESDAY, THE 25TH DAY OF JANUARY 2017/5TH MAGHA, 1938** **CRL.A.NO. 490 OF 2013 (A)** **--------------------------** **AGAINST THE JUDGMENT DATED 26-02-2013 IN SC NO. 176/2011 OF THE ADDITIONAL DISTRICT COURT (ADHOC), KOLLAM** **APPELLANT/ACCUSED: ------------------** **C.N.PRAKASH, AGED 57 YEARS, S/O.NEELAKANDAN, KODUNGAYIL HOUSE, MOOZHIKKAL KARA, MLAPPARA VILLAGE, PEERUMEDU TALUK.** ## **BY ADV. SRI.LIJI.J.VADAKEDOM** **RESPONDENT/STATE:** **------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSEUCUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. C.S. HRITHWIK** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DST** ## **P.UBAID, J.** ============================ **Crl.Appeal No.490 of 2013** ============================ Dated this the 25[th] day of January, 2017 ## **JUDGMENT** The appellant herein challenges the conviction and sentence against him under Section 8(2) of the Kerala Abkari Act in S.C.No.176/2011 of the Court of Session, Kottayam. 2. The prosecution case is that at about 1.30 p.m. on 21.09.2010 at Kuzhimavu Kara, he was wound possessing 4 litres of arrack in a plastic can of 5 litre capacity. The offence was detected by the Excise Inspector of the Kanjirappally Excise Range. The accused was arrested on the spot, and the quantity of arrack was seized as per mahazar. On the basis of seizure, the Excise Inspector registered a crime against the accused, and after investigation, he submitted final report in Court. After complying with the procedural Crl.Appeal No.490 of 2013 2 formalities, the learned Judicial First Class Magistrate's Court-I, Kanjirappally committed the case to the Court of Session from where it was made over to the learned Additional Sessions Judge,(Adhoc-I), Kottayam for trial and disposal. 3. The accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against him under Section 8(2) of the Kerala Abkari Act. Though final report was filed under Section 55(a) of the Kerala Abkari Act also, charge was appropriately filed under Section 8(2) of the Kerala Abkari Act. The prosecution examined four witnesses including the detecting officer, and proved Ext.P1 to P8 documents. The MO1 plastic jar containing arrack was also identified during trial. Exts.C1 and C2 documents were also proved as Court exhibits during trial. When examined under Section 313 Cr.P.C. the accused denied the incriminating circumstances, and projected a defence of total denial. The accused did not adduce any evidence in defence 3 Crl.Appeal No.490 of 2013 inspite of opportunities granted by the trial court. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo simple imprisonment for one year, and to pay a fine of Rs.1,00,000/- (Rupees One lakh only) by judgment dated 26.02.2013. Aggrieved by the said judgment of conviction, the accused has come up in appeal. 4. When this appeal came up for hearing, the learned counsel for the appellant submitted that the accused is entitled for acquittal on the ground of a serious infirmity that the investigation was conducted by the detecting officer himself, and that the prosecution has not satisfactorily proved that the sample was not tampered with, or that the sample analysed at the laboratory is not the same sample collected from the liquid seized from the possession of the accused. On the other hand, the learned Public Prosecutor submitted that all the material aspects stand well proved, and that the accused was not in any manner prejudiced by the Crl.Appeal No.490 of 2013 4 investigation conducted by the detecting officer. Much was not argued by the defence about the detection process or the investigation process. Detection was made by the competent officer appointed as Abkari officer under the law, and investigation was also conducted by him. The very same officer filed final report also after investigation. As regards competence of the officer who detected the offence, or conducted investigation, or submitted final report, there cannot be any challenge because, an Excise Inspector is well competent as an Abkari officer to discharge all the functions under the Kerala Abkari Act. 5. Seizure of arrack from the possession of the accused stands well proved by the evidence of the detecting officer examined as PW3. PW1 is the Village Officer who prepared the Ext.P1 scene plan, and PW2 is an independent witness. PW4 is the Excise guard who had accompanied the Excise Inspector. PW2 turned hostile to the prosecution. However, he admitted his Crl.Appeal No.490 of 2013 5 signature in the Ext.P2 seizure mahazar. Anyway, the process of detection including arrest of the accused, and the seizure of 4 litres of arrack contained in the MO1 plastic can carried by the accused is well proved by the evidence of PW3 and PW4. There is absolutely no reason to reject their evidence. The learned counsel submitted that there was previous enmity between the excise guard and the accused. Such a suggestion was stoutly denied by the Excise Officials, and the defence could not prove anything to substantiate such a case. The detection as per Ext.P2 seizure mahazar stands well proved in this case. All the material witnesses identified the MO1 plastic can carried by the accused, containing arrack. 6. The defence is mainly on the legal question regarding the investigation conducted by the detecting officer. **In Kader v. State of Kerala [2001 (2) KLT 407],** a Division Bench of this Court held that the mere fact that the detecting officer himself investigated the case will not vitiate the whole Crl.Appeal No.490 of 2013 6 prosecution. This Court held that it will vitiate the prosecution only in cases where the accused was seriously prejudiced by such investigation conducted by the detecting officer. This Court held so after examining all the earlier decisions on the point, including **Megha Singh v. State of Haryana [AIR 1995 SC 2339]** . This is not in fact a case where the crime was registered or investigated by the complainant. The Excise Inspector in this case cannot be said to be a complainant. He detected the offence in discharge of his functions as an Abkari Officer under the Kerala Abkari Act. Just because, he detected the offence as par of his official functions, he cannot be called a complainant, as meant under the law. Anyway, in view of the decision of this Court in **Kader v. State of Kerala(Supra)** , the defence cannot be heard to argue that the prosecution is bad. There is absolutely nothing to show that any sort of prejudice was in any manner caused to the accused by the investigation conducted by the detecting officer. Another contention Crl.Appeal No.490 of 2013 7 raised by the defence is that there is no evidence to prove that the sample analyzed at the laboratory is the very same sample collected from the accused. On this aspect, there is a clear evidence of PW3 and PW4 that 200ml of arrack was taken in a bottle as sample, and it was properly packed and sealed at the place of detection itself. The remaining quantity of arrack contained in the can was also well packed and sealed. The mahazar also shows that the sample and the remaining quantity of arrack were sealed at the place of detection. 7. It is true that during trial PW4, the clerk who dealt with the sample in the Court of the learned Magistrate stated that the sample was returned from the chemical analysis laboratory on the ground that the packing was not proper. There is absolutely nothing to show that the seal was not intact, or that it was in any manner tampered. It was returned just because the sample was not properly packed. This is not a case where the sample was not properly sealed, or that the Crl.Appeal No.490 of 2013 8 seal was not found intact. The Ext.P8 certificate shows that at the time of receipt at the laboratory, the seal was found intact, and it tallied with the sample seal provided. There is nothing to show that the sample was in any manner tampered at any point, or at any time, or at any place. PW3 is well consistent that the sample produced in this case was taken from the arrack contained in the MO1 plastic can seized from the hands of the accused. The learned counsel cited **Viswanadhan v. State of Kerala [2016(3) KHC 38].** This Court held in the said case that non examination of the Police Constable who received the sample is fatal. This Court held so in the particular facts and circumstances of the said case. The facts here are different. This is a case where the sample was properly sealed and packed, and the very same sample was sent for analysis to the laboratory. The same was timely sent to the laboratory for examination, and it happened to be returned only because it was not properly packed. It was not returned for the reason it is Crl.Appeal No.490 of 2013 9 not properly sealed. I find that the prosecution case stands well proved that the sample analysed in the laboratory is the very same sample taken by the detecting officer from the MO1 plastic can seized from the hands of the accused. The sample was identified as arrack on examination at the laboratory. 8. As discussed above, I find that the prosecution case stands proved beyond any reasonable doubt, In the absence of anything to prove that the accused was in any manner prejudiced, the investigation conducted by the detecting officer will not in any manner vitiate the prosecution. I find that the conviction is only to be confirmed in appeal. 9. Now the question of sentence. No previous crime of similar nature is seen reported against the accused. He is now aged 64 years. The crime was detected in 2009. Now we are in 2017. On a consideration of all the relevant aspects including the age of the accused, and the long lapse of years, I feel it 10 Crl.Appeal No.490 of 2013 appropriate to reduce the sentence slightly, and also to reduce the default sentence. Though this Court cannot exercise the discretion in the matter of fine where minimum is prescribed, this Court can use the discretion as regards the default sentence. In the result, this appeal is dismissed, confirming the conviction against the appellant under Section 8(2) of the Kerala Abkari Act in S.C.No.176/2011 of the court below. However, the sentence imposed by the court below will stand reduced to simple imprisonment for six months, and the default sentence will stand reduced to simple imprisonment for two months. The appellant will get the benefit of set off as already ordered by the trial court. Sd/- **P.UBAID,JUDGE** rkj //TRUE COPY// P.A. TO JUDGE