K. Kumaran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931** **CRL.A.No. 897 of 2003()** **----------------------------------** **SC.238/2000 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD** **....................** ## **APPELLANT(S): ACCUSED** **---------------------** **K.KUMARAN, S/O.THIMMAN, PEROLE, VANIYAMVAYAL, PEROLE VILLAGE, KASARAGOD DISTRICT.** **BY ADV. MR.T.K.VIPINDAS** ## **RESPONDENT(S): COMPLAINANT** **--------------------------** **STATE OF KERALA, REPRESENTED BY REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM REPRESENTING THE SHO, HOSDURG POLICE STATION.** **BY PUBLIC PROSECUTOR MR.C.M.NAZAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ORDER ON CRL.MA. NO.5616/2003 IN CRA. NO.897/2003** ## **DISMISSED** **28/07/2009** **SD/- M.N.KRISHNAN, JUDGE** **TRUE COPY** **P.A. TO JUDGE** ## **TSS** **M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 897 OF 2003 = = = = = = = = = = = = = = = Dated this the 28[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.238/00 of the 3[rd] Addl. Sessions Judge, Adhoc-I, Kasaragod. The accused was charge sheeted for an offence u/s 55(a) of the Abkari Act and was found guilty and was convicted and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for a period of six months more. It is against that decision the accused has come up in appeal. 2. The points that arise for determination in the appeal are: (1) Whether the materials are sufficient to hold the accused guilty u/s 55(a) of the Abkari Act? (2) If case of guilt whether the sentence is excessive? **Crl.A. 897 OF 2003** -2- ## **Points:** 3. Heard the learned counsel for the appellant as well as the Public Prosecutor. Learned counsel for the appellant had strongly contended before me the following points. (1) That the detection and investigation is done by the Addl. Sub Inspector of Police which is not proper under law. (2) The evidence available does not point out the guilt of the accused and (3) The delay in sending the samples to the Court. 4. As far as the first point is concerned an Abkari Officer as notified by the Government SRO 321/96 is that all the police officers of and above the rank of Sub Inspectors of Police are Abkari Officers. Here the detection and search is made by an Addl. Sub Inspector of Police. Addl. Sub Inspector of Police is also a Sub Inspector of Police and only he becomes an Addl. Sub Inspector when there is only one post of a Sub Inspector of Police in a particular Police Station. Therefore he is also clothed with the powers of a Sub Inspector. So the said contention cannot be accepted for the reason that he is also an Abkari Officer within the purview of Abkari Officer as **Crl.A. 897 OF 2003** -3- notified by the Government. 5. The next argument is regarding the evidence. PW2 is the main witness in this case who is the Addl. Sub Inspector of Police. He had deposed before Court that from the premises of the Railway Station the accused was found in suspicious circumstances with two plastic bags when intercepted and examined the bags contained 325 packets each of 100 ml. Karnataka Made illicit arrack. He was apprehended, six bottles each from the packets were opened and the samples were taken from each of the packets and those samples were sealed and the remaining liquid was also taken possession of along with the container. It is also deposed that it was sampled and sealed. PW3 an independent witness who is supposed to be a person who is expected to support the public cause had given different versions at different stages regarding the very detection. He would say that it is from the train accused was found, then it is from the platform he had signed two papers etc. so rightly the Court below did not take into consideration his evidence at all. Then the question arises is whether the conviction can be had on **Crl.A. 897 OF 2003** -4- the basis of the sole evidence of an Abkari Officer or the official witness. In the decision reported in _**Sivaraman v. State of Kerala (1981 KLT S.N. Case No.17 page 9)**_ this Court had considered the point and it only held that the official witness's evidence can be accepted by the Court provided it stands to meticulous scrutiny and when the Court finds it as an intrinsically reliable piece of evidence. PW2 has no axe to grind against the accused and he was only performing his official duty and therefore I find that the evidence of PW2 is sufficient to hold that the accused was found to be in possession of this illicit liquor. 6. Lastly, the learned counsel would contend about the delay. The detection is on 5.9.99 and the material objects are produced before Court only on 15.9.99, i.e. after ten days. It is seen that the Addl. Sub Inspector has produced the material objects to the Sub Inspector of Police who had authorized the Station House Officer to send it to the Court. The possession was with the Sub Inspector of Police. The principle behind the procedural formalities is to ensure that the liquor which was taken possession of is the liquid which is sampled and it is that **Crl.A. 897 OF 2003** -5- liquor which is produced before Court and send for chemical analysis. Here it can be seen that as many as 650 packets of illicit liquor has been seized had been produced before Court also. There is no question of any alteration or substitution because they are all Karnataka Made illicit arrack put in a bag and sealed. Therefore the mere delay has not resulted in prejudice to the accused and the chemical analyst report also would reveal that when the bottles were produced the seal on was in tact and found tallied with the sample seal provided. In the samples also the percentage of ethyl alcohol present was 35%, 36% etc. Therefore I find that the accused was found in possession of illicit liquor. Admittedly it was Karnataka Made liquor which was brought to the State of Kerala and therefore S.55(a) of the Abkari Act is squarely attracted and conviction u/s 55(a) does not call for any interference. 7. Now turning to the question of sentence. Learned counsel would contend that the sentence awarded is excessive and the Court may have to show leniency. It is true that the quantity is about 65 liters and really it is a social menace. Taking into consideration the age of the person and the ## **Crl.A. 897 OF 2003** -6- attending circumstances I am inclined to reduce the sentence to that of one year and to reduce the default sentence to that of three months. In the result the Crl.Appeal is disposed of as follows. - (1) The finding of guilt u/s 55(a) is upheld. (2) The sentence is modified and the accused is sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine to undergo a simple imprisonment for a period of three months more. (3) He is entitled to set off as contemplated u/s 428 Cr.P.C. ## **M.N. KRISHNAN, JUDGE.** ul/- ## **Crl.A. 897 OF 2003** -7- **M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 897 OF 2003 = = = = = = = = = = =** **==> picture [136 x 10] intentionally omitted <==** **28[th] July, 2009**