GANESH & ANIL DAS v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** **WEDNESDAY, THE 3RD AUGUST 2011 / 12TH SRAVANA 1933** ## **CRL.A.No. 2066 of 2003()** **------------------------** **SC.365/2001 of ADDL. SESSIONS JUDGE, FAST TRACK COURT -II, PALAKKAD** **....................** ## **APPELLANT(S)/ACCUSED:** **-------------------------------------** **1. GANESH, S/O.KUMARASWAMY, MARAPPA KOUNDER HOUSE, ARUMUGHAKOUNDANNUR, PERURCHETTYPALAYAM.** **2. ANIL DAS, S/O.PARAMESWARAN, VELLATHIRI VEEDU, PERINGAVU, THRISSUR DISTRICT.** **BY ADV. SRI.P.VIJAYA BHANU SRI.TONY MATHEW** ## **RESPONDENT(S)/COMPLAINANT:** **--------------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **PUBLIC PROSECUTOR SRI. I.V.PRAMOD** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **N.K.BALAKRISHNAN, J ----------------------------------------Crl.Appeal No.2066 OF 2003 ---------------------------------------Dated this the 3[rd] day of August, 2011.** ## **JUDGMENT** The two accused who were convicted by the Additional Sessions Judge, Fast Track Court No.II, Palakkad for offence punishable under Section 55(a) of Abkari Act are the appellants. They were sentenced to undergo rigorous imprisonment for 7 years each and to pay a fine of Rs.1,00,000/- each and in default to undergo simple imprisonment for one year each. This appeal is directed against that conviction and sentence. The case of prosecution in a nutshell is stated as follows: On 9.5.2000 at about 12 noon PW1 the Sub Inspector of Valayar police station and his police men were at the Hospital junction Kanchikode checking the vehicles. A lorry came from east to west. PW1 showed signal to stop the lorry. The lorry was not stopped and so PW1 chased the 2 **Crl.Appeal No.2066 OF 2003** lorry in the police jeep. The lorry was intercepted and A1 who was the driver and A2 who was stated to be cleaner were questioned. A2 was asked to untie the tarpaulin cover. The cleaner then took to his heels from there. PW1 along with the police party chased him and at a distance of 300 metres, he was apprehended and when questioned PW1 could discern that the lorry contained illicitly transported liquor. A1 and A2 and the lorry were taken to the police station. After removing the tarpaulin the lorry was examined and it was found to contain black iron boxes in the model of kit boxes. When examined, those boxes were found to contain three white cans of 35 litres capacity in each box. There were altogether 230 plastic cans each containing 35 litres. The accused were arrested. Three samples of 180ml each from those 230 plastic cans containing 35 liters(total 690=230x3) were taken. Those samples were labelled on which the witnesses who were present there signed. PW1 registered the crime against the 3 **Crl.Appeal No.2066 OF 2003** accused at 2.45 p.m on the same day as Crime No.86/2000 under Section 55(a) of the Abkari Act. 2. It was stated by PW1 that the accused were arrested following the procedures prescribed. Ext.P1 is the arrest memo pertaining to A1 and Ext.P2 is the arrest memo relating to A2. Ext.P3 is the seizure mahazar prepared by PW1 contemporaneously describing the seizure of the liquor as mentioned above. It contains the details of the properties seized. 3. It was sworn by PW1 that on further inspection of the vehicle the RC book, tax disc, G.V.R book, insurance policy, insurance certificates and also transport consignment note etc, were found. Those documents were marked as Ext.P1 to P8. The accused were thereafter produced before the learned Magistrate. The evidence given by PW1 regarding the arrest of the accused and seizure of the articles was fully supported by PW2 the police constable who was present at the time of interception of the lorry and 4 **Crl.Appeal No.2066 OF 2003** apprehension of the accused and seizure of the lorry and other articles. 4. The evidence given by PW1 and PW2 according to the prosecution gets corroboration from PW4 another independent witness also. Though PW3 did not support prosecution, he also says that the lorry was seized and the articles were taken out from the lorry. As he did not say that he had seen A1 and A2 at the relevant time and place he was cross examined by the learned prosecutor with regard to the same after getting permission of the court. Though PW1 and PW2 were cross examined at length their evidence could not be shattered with regard to the seizure of the lorry and the articles mentioned above. Though it was contended by A1 that he was in his house and that police took him from his house to the police station and that he does not know driving that was found to be not true. When PW1 and PW2 testified before court that it was A1 who was driving the lorry and it was intercepted at the 5 **Crl.Appeal No.2066 OF 2003** place as mentioned earlier after chasing it for a short while there was no case that it was driven by A1. The contention to the contrary advanced by the defence cannot be countenanced. 5. It was argued by the learned counsel for the appellant that PW3 and PW4 are stock witnesses and that a reading of the evidence of PW4, would make it clear that he was at the beck and call of the Excise officials and so their evidence cannot be accepted at all. The learned counsel has also pointed certain contradictions in the evidence given by PW4. It is seen that the cross examination was directed in such a way that after putting one question relating to the first part of incident the next question was put relating to the later part of the incident leaving the incident in between. It seems, by putting such questions the defence wanted to misguide the court. But on a careful reading of the entire evidence of PW3 and PW4, though there are slight discrepancies which are bound to occur, there is no 6 **Crl.Appeal No.2066 OF 2003** material contradiction in their evidence. Their evidence is not contradictory to the evidence given by Pws.1 and 2 so far as it relates to the arrest of the accused and seizure of the vehicle and the contraband articles. These aspects were analysed by the learned trial Judge in the correct perspective and found that 230 plastic cans containing 35 liters each were seized as per Ext.P3 mahazar. Ext.P3 the contemporaneous record and Ext.P1 and P2 arrest memo also lend assurance to the case of the prosecution. The finding to that effect is only to be confirmed. 6. The main thrust of the argument advanced by the learned counsel for the appellant is that there is inordinate and unexplained delay of more than five months in producing the samples in court for forwarding the same for chemical examination. Ext.P4 is the forwarding note. It was received in the office of the Judicial First Class Magistrate, Palakkad on 27.10.2000. The property list was not marked by the prosecution. However, there is the **Crl.Appeal No.2066 OF 2003** 7 evidence given by PW1 that because the quantity was bulk (8050 litres) the plastic cans containing liquor were kept in their proper custody itself. That was not challenged by the defence. Since the forwarding note was received more than 5 months after the seizure, it is vehemently argued by the learned counsel that there was every possibility of the sample bottles having been tampered with and so no credibility can be attached to the Chemical Examiner's report. The learned counsel submits that during this long period of 5 months there was opportunity for the Excise officials to prepare new sample bottles to suit their case. 7. PW1 and PW2 swore before court and it was mentioned in Ext.P1 also that the samples were prepared on the very same date. If so what was the difficulty in forwarding the same on the same day or at least within a reasonable period is the question posed by the learned counsel. The learned Public Prosecutor would submit that delay in sending the sample bottles, 230 in number, cannot 8 **Crl.Appeal No.2066 OF 2003** affect the case of the prosecution since the evidence given by Pws.1, 2 and 4 that all the samples were packed, sealed and labelled and that the signatures of the witnesses were also obtained on those sample bottles were not assailed at all by the defence. The forwarding note also shows that all the sample bottles were in sealed condition. Ext.P6 the chemical examination report shows that seals on the samples were intact and tallied with the sample seal provided. Therefore, in the light of the clinching evidence the argument advanced by the learned counsel for the appellant that there was possibility of tampering of the samples is unacceptable. 8. The learned counsel for the appellant has relied upon **Sathi v. State of Kerala (2001 (1) Short Note 57 (C.N0.82)** in support of his submission that prosecution can succeed only if it is proved that sample which was analysed in the chemical examiner's laboratory was drawn from the bulk quantity of the alleged contraband substance 9 **Crl.Appeal No.2066 OF 2003** said to have been possessed by the accused. In that case it was found that sample changed hands several times before it reached the hands of the chemical examiner. But here evidence given by PW1 that sample bottles were in his custody alone and those sample bottles were produced by him in the same condition remains uncontroverted. 9. The decision in **Sasi v. state of Kerala (2007 (1) KLT 720)** has also been cited by the learned counsel for the appellant to fortify his submission that prosecution has the duty to prove that it was the sample taken from the contraband liquor seized from the accused which had reached the hands of the chemical examiner in an untampered condition. The evidence given by PW1 that sample bottles were in his custody and that all the sample bottles which were received in court in sealed condition, containing the labels affixed on them with signatures of the witness including PW3 and PW4 would prove to the hilt that the samples which reached the court are the very same 10 **Crl.Appeal No.2066 OF 2003** samples seized as per Ext.P3 mahazar at the relevant time and place and they were the samples which reached the hands of the Chemical Examiner. Therefore the aforesaid decision is not applicable to the facts of the present case. 10. It is a case where the seizure was reported to the court within 24 hours of the detection of the crime. It was held by the Division Bench in **Ravi V. State of Kerala (2011 (3) KHC 121)** that it is not necessary to produce the articles seized u/s 34 of the Abkari Act before the Magistrate 'forth with' . What is mandated by the statue is that seizure of property should be reported forth with to court. The statute insists on production of the property before an officer of a particular designation or rank to ensure that there is no mis-use of property. Here, there is convincing evidence given by PW1 that from 230 plastic bottles containing 35 litres each of liquor, three sets of samples were taken i.e. 230x3 = 690 sample bottles. The evidence would show that all those sample bottles were packed, 11 **Crl.Appeal No.2066 OF 2003** sealed and labelled in the presence of the witnesses. The evidence given by PW1 is that all those sample bottles were in his custody. One set of 230 sample bottles were produced before the Magistrate along with a forwarding note for sending the same for chemical examination. That evidence could not be properly assailed. There was no case for the accused that those samples were tampered with. It is true that the detecting officer cannot produce before the court leisurely. Though it is correct that there was delay in producing the property (sample bottles) before the court that by itself cannot be fatal to the prosecution in this case. The samples 230 in number before they were produced in Court did not pass through several hands. They were with PW1 only. The sample bottles reached the hands of the chemical examiner in tamper proof condition and as such the contention that the delay in production of the property is fatal to the the prosecution cannot be sustained. 11. The fact that the lorry was not stopped even when **Crl.Appeal No.2066 OF 2003** 12 PW1, the Sub Inspector showed signal and lorry could be intercepted only because PW1 and others chased and kept the jeep in front of the lorry and the further fact that there was an attempt to flee from being apprehended by the police officer at a time they were asked to untie the load would show that they knew they were transporting illicit liquor. The presumption u/s 64 of the Abkari Act that it shall be presumed until contrary is proved that the accused person has committed the offence u/s 55 and other sections mentioned therein, in respect of any liquor or intoxicated drug that he himself had committed the crime would also be available to the prosecution. In other words, the two accused persons cannot contend that the contraband articles did not belong to them or to somebody else. 12. As such I find that the prosecution could prove the case beyond reasonable doubt. The conviction is thus confirmed. 13 **Crl.Appeal No.2066 OF 2003** 13. The learned counsel for the appellant would submit that even according to the prosecutor A1 is only a driver and A2 is only a cleaner but the Excise Officials have not ventured to apprehend the real kingpin. The learned counsel submits that instead of apprehending the 'big shark' the Excise Officials apprehended only these poor people. The accused were sentenced by the court below to rigorous imprisonment for 7 years each and fine of Rs.1,00,000/each. The very fact that they tried to flee from being apprehended by the police would show that they were transporting it at their risk. Somebody else also may be involved in this case but that is not a reason for claiming clemency. The quantity of liquor which was transported in this case is 8050 litres. Learned counsel submits that at the time of arrest A2 was only 21 years and so they would get themselves reformed if they are not put under incarceration for a longer period. **Crl.Appeal No.2066 OF 2003** 14 14. Considering all the aspects I find that the substantive sentence imposed on the appellants can be reduced to rigorous imprisonment for 4 years each but maintaining the sentence of fine. In the result, this Crl. Appeal is disposed of as stated below: The conviction of the appellants for the offence under Section 55(a), of the Abkari Act is confirmed. The substantive sentence of imprisonment imposed on the appellants is reduced to rigorous imprisonment for 4(four) years but the sentence of fine and the default sentence are confirmed. ## **N.K.BALAKRISHNAN, JUDGE** mns