CRL.A.No.1728 of 2003 (SC.86/1999 of ADDL. SESSIONS COURT, MANJERI)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** ## **WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931** ## **CRL.A.No. 1728 of 2003()** **----------------------------------SC.86/1999 of ADDL. SESSIONS COURT, MANJERI(FAST TRACK COURT NO.III) ....................** ## **APPELLANT(S): ACCUSED:** ## **VISWANATHAN @ MANI, S/O. VELAYUDHAN, KARAKKOD, VAZHIKKADAVU.** ## **BY ADVMR.BABU S. NAIR** ## **RESPONDENT(S): STATE:** **THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, VAZHIKKADAVU - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** ## **BY PUBLIC PROSECUTOR MR.C.M.NAZAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/06/2009, THE COURT ON THE SAME DAY DELIVERED THE** ## M.N. KRISHNAN, J. --------------------------CRL.A.NO.1728 OF 2003 -----------------------------Dated this the 17[th] day of June, 2009 ## JUDGMENT This is an appeal preferred against the conviction and sentence passed by the Additional Sessions judge (Adhoc), Fast Track Court-II, Manjeri in SC.No.86/1999. It is the case of the prosecution that on getting information, they went on 13.12.1997 to a place called Karakkod Desom, Puthiripadam and from a distance, they saw the accused having a Can, which on seeing the police was dropped there and he ran away. According to the prosecution, thereafter the seizure mahazer was prepared, the contraband was taken, sample was also taken and sealed and produced before he concerned Magistrate on 19.12.1997. In the trial court Pws 1 to 5 were examined and Exts.P1 to P7 and MO1 were marked. The trial court, as stated earlier, found the accused guilty under Section 58 of the Abkari Act and sentenced him to undergo imprisonment for a period of 3 years and to pay a fine of Rs. One lack. It is against that decision, the present appeal is preferred. The points that arise for determination are (1) 2 CRL.A.NO.1728/03 whether the court below was right in finding the accused guilty under Section 58 of the Abkari Act (2) whether the punishment imposed is on the higher side. ## 2. Point No.1: Learned counsel for the appellant had concentrated on two points in this case namely that identification of the accused was not there at all and further that there was a delay in producing the contraband before the concerned Magistrate and therefore, the accused should be set at liberty. It is the case of the prosecution that, on getting information, the patrol party proceeded to the place and with the aid of the torch light, they found the accused in possession of one white Can. According to them, the accused on seeing them, put the Can and ran away. Thereafter the police found that there was 9 liters of arrack out of which, 250 ml was taken as sample and it was sealed. Thereafter the crime was registered and the material objects were sent for chemical examination. The contraband article reached the court only on 19.12.1997 though the detection was on 13.12.1997. In cross examination PW1 had stated that a head constable and police constables 3 ## CRL.A.NO.1728/03 were with him. It is stated by him that on seeing the police party, the accused ran towards the left side. It is also deposed by him that he was able to see the accused in a 3 to 5 meters distance. Then he speaks about preparation of other materials. PW2 is the police constable, who had accompanied PW1. He had also deposed that they had seen the accused standing with a white Can and that, he had left the place on seeing them. He also speaks about the seizure etc. PW3 is an independent witness and he would depose that he had not seen the accused with alcohol. He admits at least his signature in the label. PW4 is a witness to Ext.P6 mahazer. PW5 is the Sub Inspector of Police, Vazhikadavu, who had conducted the investigation and submitted the final report before the court. 3. Learned counsel for the appellant argues for the proposition that unless there is some identity with respect to the accused, it may not be correct to hold that the arrack was found in his possession in a plastic Can. I find Ext.P1 seizure mahazer was prepared on 13.12.1997 itself. The name of the accused was written with the name of his father and it is also 4 ## CRL.A.NO.1728/03 written in Ext.P1 seizure mahazer that the Sub Inspector knows him for the reason that he had come to the police station with a petition. So, the prosecuting agency was not in the dark even when they prepared the seizure mahazer immediately after seizing it. The evidence of PWs 1 and 2 also proceeds on the assumption that the accused is known to them. It is true that the incident took about 10.30 p.m. According to the police, they were coming in a jeep. They had a torch with them. PW1 had deposed that he had seen the accused, 3 to 4 meters away and it was from that place, the accused escaped. The police officials did not have any doubt about the identity of the accused. Nothing is suggested even in the cross examination to the effect that they have not identified the accused. When it is so, what is recored in Ext.P1 cannot be simply brushed aside. There was no question of any identification parade being conducted for the reason that in the seizure mahazer and in the crime registered, the address and name of the person is shown correctly. Suppose it had been a case where they have decided to foist a false case, certainly, this should not have been the attitude. Therefore, 5 ## CRL.A.NO.1728/03 the evidence of PWs 1 and 2 is to the effect that it was the accused, who had put the Can and ran away. It can be accepted for the purpose of proper identification of the accused. 4. The next point argued by the learned counsel is the delay in sending the sample to the court. 13.12.1997 was the date of seizure. 19.12.1997 was the date on which it was produced before the court. There are a number of decisions which deals with the delay in production of the contraband. The fundamental principle so far as this case is concerned is that suppose it gives a suspicion that something could have been done with the contraband liquor and if the reason is not properly explained, one has to give the benefit of doubt to the accused. In one of the decisions, the court felt quite apprehensive for the reason that the can was produced before the court, but there was nothing to show that the sample was taken from that can for the purpose of chemical examination. The court commended upon the non examination of the court officials also. So, the principle underlying the factum of seizure and production of it before the 6 ## CRL.A.NO.1728/03 court is to ensure that the prosecuting agency does not make anything so as to cause prejudice to the accused. Now the Sub Inspector of Police had reported that the contraband liquor was with him for 6 days and he had preserved it. The bottle was taken and it was sealed and that was also produced. The said bottle sample was sent for chemical examiner's report. The chemical examiner in his report has made it clear that the seal on the bottle was intact. It has also to be remembered that these officials have no personal vengeance against this accused. They were only performing their official acts and it was in that process, they caught hold of the accused involved in the case. Just because, there is a delay of 6 days, I cannot throw out the case of the prosecution unless one is able to show that some substantial prejudice has been caused to the appellant. Here, I do not find any such prejudice being caused and the liquor which was taken as sample was produced before the court and the court had received it. Therefore, the mere delay of 6 days is not a ground to acquit the accused. Learned counsel has drawn my attention to a decision of this Court reported in **Sivadasan v. State of** 7 ## CRL.A.NO.1728/03 **Kerala** (2007 (3) KLJ 328). There was a delay in producing the sample before the court and the court took the view that it had caused prejudice and therefore, acquitted the accused. But these are all matters where the law has to be applied on the facts and circumstances of the case. There cannot be a general rule or a decision to the effect that if there is some delay the accused should be acquitted. That is why initially I had mentioned that if the materials available are able to create a small suspicion in the mind of the court, then certainly, the decision relied upon and the principle embodying therein has to be followed. But as far as this case is concerned, I have no such apprehension and therefore, I am not considering the six days delay as fatal to the prosecution. 5. Now, coming to the evidence of PWs 1 and 2. A perusal of the evidence of PWs 1 and 2 appears to be intrinsically reliable and probable. Therefore, I do not find any mistake committed by the court below in convicting the accused under Section 58 of the Abkari Act. 6. Now coming to the sentence. Under Section 58 of the 8 ## CRL.A.NO.1728/03 Abkari Act, the punishment is imprisonment up to 10 years and with fine which shall not be less than Rs. One lakh. When the accused was questioned under Section 313, he had pointed out that there is nobody to look after his family and his wife and children are totally relying on him for their day to day expenses. Considering that aspect and as there is nothing to show that he is a habitual offender, I am inclined to reduce the sentence and also the default sentence. 7. In the result the criminal appeal is disposed of as follows: 1. The finding of guilt under Section 58 of the Abkari Act is confirmed. 2. The accused is sentenced to undergo R.I for a period of six months and to pay a fine of Rs. One lakh and in default of which he shall undergo imprisonment for another one month. He is also entitled to set off as contemplated under Section 428 of the Cr.P.C. ## M.N. KRISHNAN, JUDGE 9 ## CRL.A.NO.1728/03 cl 10 CRL.A.NO.1728/03