K. Kunhikannan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931** **CRL.A.No. 328 of 2003(C)** **-----------------------------------** **SC.590/2000 of ADDL. SESSIONS COURT(ADHOC-II), THALASSERY.** **....................** **APPELLANT(S): ACCUSED:** **----------------------** **K. KUNHIKANNAN, S/O. VELIYAN, KOLANGARA, KOLIPARA COLONY, NEAR PERINCHERY READING ROOM, KEEZHOOR AMSOM.** **BY ADVS.MR.K.S.MADHUSOODANAN MR.C.P.PEETHAMBARAN** **RESPONDENT(S): COMPLAINANT:** **---------------------------** **STATE OF KERALA TO BE REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **PUBLIC PROSECUTORSMT.M.K.PUSHPALATHA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ORDER ON CRL.MP. NO.1874/2003 IN CRA. NO.328/2003** ## **DISMISSED** **09/07/2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE** ## **TSS** **M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 328 OF 2003 = = = = = = = = = = = = = = = Dated this the 9[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.590/00 of the Addl. Sessions Judge, Adhoc-II, Thalassery. The accused was charge sheeted for an offence u/s 55(a) of the Abkari Act and was convicted thereunder and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default to undergo further imprisonment for nine months. 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 there are sufficient materials to hold the accused guilty u/s 55(a) of the Abkari Act? (2) In case of guilt whether the quantum of punishment is excessive? **Crl.A. 328 OF 2003** -2- ## **Points:** 3. Heard the learned counsel for the appellant as well as the Public Prosecutor. Learned counsel would strongly urge before me that the materials are insufficient and there is statutory non-compliance of informing the independent witnesses while effecting the search and therefore the whole prosecution is vitiated. It is also submitted that there is a delay of four days in producing the material objects before the Court. It is the case of the prosecution that on 14.10.97 at about 2.30 p.m. the squad were able to detect the accused sitting on the back side of the bus with a container that contained 125 packets of Karnataka arrack. The accused was travelling in the bus KL 13/B 8042 and it was from his custody the articles were seized. After search one of the packets were opened and smelt and tasted which did show that it was illicit arrack. Thereafter samples were taken by opening two more containers and thus the rest of 122 packets were sealed separately in a sack. The sample was sealed in a bottle and produced before Court, sent for chemical analysis and prosecution continued. The evidence mainly consists of that of ## **Crl.A. 328 OF 2003** -3- PWs.1 and 2. PW1 is the Excise Inspector and Anti Narcotic Squad. He would depose before Court that while they were on duty near the Ben Hill College on information that in a bus bearing Reg.No. KL 13/B 8042 illicit arrack was being transported, they stopped the bus and searched the bus. On the right rear seat they found the accused sitting with nylon bag which on suspicion was searched and it was found to be illicit arrack. Then it is submitted that the samples were taken up by opening up three packets in numbers into a 375 ml. Container and it was sampled and sealed. The remaining three were put into another bag and sealed. The witnesses had identified all the material objects and he has been cross examined at length and nothing has been brought out to discredit his evidence. 4. PW2 is another officer who had accompanied him and he has also spoken in the same line with respect to the search, seizure etc. PWs.3 and 4 are two official witnesses who had participated in the further investigation etc. The main point argued by the learned counsel is that when a search is made u/s 36 of the Abkari Act it is mandatory that **Crl.A. 328 OF 2003** -4- two witnesses shall be present other than the Abkari Officers. This matter came up for consideration before a Division Bench of this Court in the decision reported in _**Madhavan v. Excise Inspector (2000(1) KLT 311)**_ , the Division Bench held that the infraction of the proviso does not vitiate the trial if materials brought on record justify the conviction. This Court held that it is clear that S.36 only provides safeguard to accused during search and even if there is infraction that will not vitiate the trial if the materials brought on record justify the conviction. It is for the Court to decide what weightage can be attached to the evidence in that regard. It can be stated that it was on the day light of 2.30 p.m,. the bus has been stopped and search was conducted and evidence of PWs.1 and 2 are uniform, cogent and convincing with respect to the seizure and it does not raise any apprehension in the mind of the Court with respect to the truthfulness of the same. So in the light of the dictum laid down I am inclined to hold that it will not vitiate the trial. 5. So far as the independent witnesses are concerned it has been decided in the decision reported in _**Sivaraman v.**_ **Crl.A. 328 OF 2003** -5- _**State of Kerala (1981 KLT S.N. Case No.17 page 9)**_ that it is a practice that independent witnesses turn hostile to the prosecution for a reason best known to them and in such cases the Court held that the evidence of the official witnesses can be looked into and the only caution that was stated was that it must be put to meticulous scrutiny before accepting the same. As stated by me earlier the evidence of PWs.1 and 2 does not suffer from any infirmity or any contradiction which arises any suspicion regarding the correctness of their version. The approach of the Court below on that ground also cannot be faulted. 6. The next point argued by the learned counsel is that there is a delay of four days. One cannot hold that the delay of 4 days is very fatal unless it is shown that it has caused prejudice to the accused. The samples were sealed in a bottle and the chemical analysis report would reveal that the seal on the bottles were in tact and even it tallied with the sample seal provided. Ext.P8 also reveals that the sample of liquid contained 36.5% by volume of ethyl alcohol. Therefore on that ground also there cannot be any interference. From **Crl.A. 328 OF 2003** -6- these materials I hold that the conviction under S.55(a) has to be sustained. 7. Now turning to the question of sentence. The learned counsel for the appellants submits before me that the quantity involved in this case is 12½ liters of arrack and accused is an Adivasi, not well educated and the whole family depends upon him and therefore sympathy may be shown on him. He would also contend that he had already undergone imprisonment for a period of 259 days and therefore the Court has to take note of the same. After hearing the persuasive argument of the learned counsel I am inclined to reduce it to six months with a fine of Rs.1,00,000/- and in default of fine to undergo imprisonment for another two months. 8. In the result the appeal is disposed of as follows. (1) The conviction of sentence u/s 55(a) of the Abkari Act is confirmed. (2) The sentence is modified and the accused is directed to undergo rigorous imprisonment for a period of six months. (3) He is sentenced to pay a fine of Rs.1,00,000/- and ## **Crl.A. 328 OF 2003** -7- on default he has to undergo simple imprisonment for two months more. (4) The lower Court shall see the submission that the accused has already undergone 259 days of imprisonment. If it is correct then nothing remains to be done otherwise the Court below shall proceed in accordance with law to see whether the punishment ordered has been suffered. **M.N. KRISHNAN, JUDGE.** ul/- ## **Crl.A. 328 OF 2003** -8- **M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 328 OF 2003 = = = = = = = = = = =** **==> picture [136 x 10] intentionally omitted <==** **9[th] July, 2009**