Crl.R.P. No. 4205/2006

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **WEDNESDAY, THE 3RD DAY OF OCTOBER 2012/11TH ASWINA 1934** **Crl.Rev.Pet.No. 4205 of 2006 ( )** **--------------------------------** **CRA.277/2004 of ADDL. DISTRICT COURT (ADHOC-III), KASARAGODE SC.408/2000 of SUB COURT, HOSDURG** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED::** **-----------------------------------------** **THEKKEDATH KUNHAMBU, S/O.POKKAN, KIZHAKKEKARA, KADINHIKUZHY PEROLE VILLAGE.** **BY ADVS.SRI.M.THAMBAN SMT.T.SUDHAMANI** ## **COMPLAINANT(S)/COMPLAINANT::** **----------------------------** **THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV. PUBLIC PROSECUTOR SRI.ROY THOMAS** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **JJJ** ## **N.K. BALAKRISHNAN, J.** ------------------------------------------ Crl. R.P. No: 4205 of 2006 -----------------------------------------Dated this the 3[rd] day of October, 2012 ## **O R D E R** This revision is directed against the concurrent verdict of conviction entered against the accused for offences under section 55(a) and 55(g) of Abkari Act. He was sentenced to undergo rigorous imprisonment for two years and to pay Rs.1,00,000/- as fine for the offence under section 55(a) and rigorous imprisonment for one year and to pay Rs.1,00,000/- as fine for the offence under section 55(g) of Abkari Act. 2. The case of the prosecution is that on 09.04.1999 at about 4.30 p.m., PW4 -the Sub Inspector of Police and others on getting information that some persons were engaged in illicit distillation in the property of one Balan Maniyani which is a cashew plantation, proceeded to that place. In that cashew plantation the accused was seen **Crl.R.P. No: 4205/2006** **-2-** engaged in stirring some liquid which was in a pot kept in that compound. About 2 metres away from that place, there was a plastic can of a capacity of 10 litres. PW4 and others examined the pot/vessel. It was measuring about 40 litres, which contained in it full of 'wash' intended for the manufacture of illicit liquor. It was specifically mentioned that for the preparation of 'wash' cashew fruit was also used. PW4 and others identified the liquid as 'wash' by smell and taste. It was stated that the witnesses were also convinced of that fact. The plastic can which was seen about 2 metres away from that scene also contained in it liquor. By smell and taste PW4 and others identified it as liquor. From out of the 'wash', 750 ml each was taken in two bottles as sample. From the arrack also two bottles of 375 ml each were taken. Those properties were seized as per Ext.P2 mahazar. The sample bottles and plastic can containing the residue were properly packed, sealed and **-3-** ## **Crl.R.P. No: 4205/2006** labelled. Since it was not possible to keep the 'wash', it was destroyed then and there. The accused was arrested then and there. After reaching the Police Station Ext.P3- F.I.R. was registered. The accused and the F.I.R. were produced before the learned Magistrate immediately on the next day i.e., on 10.4.1999 at 11 a.m. The seizure mahazar was produced before the court on 12.04.1999. 3. When the samples were sent for chemical examination, the sample taken from the plastic can was found to contain 43.16 % by volume of Ethyl Alcohol and the sample which was taken from the 'wash' contained 2.54% by volume of Ethyl Alcohol. The other two samples were separately produced before the court and were marked as M.O.2 and M.O.4 respectively. M.O.3 was the plastic can which contained 10 litres of arrack and M.O.1 is the aluminium vessel which contained wash measuring about 40 litres. PWs 1 to 4 were examined and Exhibits P1 ## **Crl.R.P. No: 4205/2006** **-4-** to P7 were marked. M.Os. 1 to 4 were also identified and marked. 4. The learned Additional Sessions Judge accepted the evidence given by the prosecution and found the petitioner guilty and was accordingly convicted and sentenced. The Appellate court re-appreciated the entire evidence and concurred with the conviction and sentence. 5. The learned counsel for the petitioner argues with vehemence that there was delay in production of the contraband articles before court. Though the seizure was on 09.04.1999, the properties were produced before court only on 23.04.1999. It is also argued that PW4 and others did not offer any explanation for the delay in production of the articles nor did they say as to the officer in whose custody the properties were kept till it was produced before court. In support of that submission the learned counsel had relied upon the decision in **Sivadasan v. State of Kerala 2007** **Crl.R.P. No: 4205/2006** **-5-** **(3) KLJ 328** . It is submitted by the learned counsel that in that case also the F.I.R. was produced on the next day itself, but the properties were produced only after a few days. But the facts of that case are different. Here, M.Os. 2 and 4 are the sample bottles prepared at the time of detention. That was not disputed by the defence. The evidence would show that those two sample bottles were sealed and labelled. One sample each, sent to the Chemical Examiner, were examined, in respect of which Ext.P7 report was filed. It was found that the seal on each bottles was in tact and found tallied with the sample seal provided. Descriptions of the sample; namely, 375 ml which was the liquor taken from the plastic can and the other one of 750 ml of brownish liquid (wash) taken from the Aluminium vessel measuring about 40 litres, do get support from the factors reported in Ext.P7. ## **Crl.R.P. No: 4205/2006** **-6-** 6. It is true that PW4 did not state who was in custody of the articles till those properties were produced in Court, but since the evidence would show that the properties were sealed, labelled and were identified and marked as M.O.1 and M.O.3 and the extra sample bottles which also were sealed and labelled were marked as M.O.2 and M.O.4 and as the two courts below found no difficulty to hold that those were the properties seized from the possession of the accused, the question of mistaken identity or substitution of the articles seized from the possession of the accused does not arise at all. It is also pertinent to note that in Ext.P3- F.I.R. there is a detailed description of the properties seized from the possession of the accused including the sample details and regarding sealing and labelling as well. The courts below accepted the evidence adduced on the side of the prosecution. I find no reason to hold otherwise. **Crl.R.P. No: 4205/2006** **-7-** 7. It is also argued by the learned counsel for the petitioner that there was no utensil/apparatus, fire wood or anything of that sort to show that illicit distillation was done at that place. The charge is not under section 55(b) of the Act. Since the vessel which contained about 40 litres was proved to be 'wash' and since it is a material intended and used for distillation and also because it contained 2.54 % by volume of Ethyl Alcohol, there can be no doubt that the liquid contained in that vessel measuring about 40 litres was 'wash'. Since the other plastic can containing liquor was found just 2 metres away from the vessel (which contained 'wash') and since there was nobody else there and also because there was no other explanation for the accused, the prosecution contends that the accused must be held guilty of the offence under section 55(a) of Abkari Act also. The presumption under section 64 of the Act is also available to the prosecution. There was no explanation for the accused. ## **Crl.R.P. No: 4205/2006** **-8-** Considering the facts and circumstances of the case and since both the courts found that the petitioner was in possession of 10 litres of illicit arrack, conviction under section 55(a) also has to be confirmed. 8. The learned counsel for the petitioner submits that the petitioner is not involved in any other case and that he is now aged 58 years and as such there is no possibility for him to get himself involved in other cases hereafter. Hence the learned counsel submits that maximum leniency may be shown. 9. In the result this Criminal Revision Petition is disposed of as stated below: The conviction under sections 55(a) and 55(g) of Abkari Act is confirmed. In supersession of the sentence awarded by the courts below, the petitioner is sentenced to undergo simple imprisonment for two months each and to pay Rs.1,00,000/- each as fine and in default of payment of **-9-** ## **Crl.R.P. No: 4205/2006** the same the petitioner will undergo simple imprisonment for two months each. Substantive sentence will run concurrently. Set off is allowed under section 428 of Cr.P.C. Sd/N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj