K. Rajendran v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR TUESDAY, THE 28[TH] DAY OF JUNE 2022 / 7TH ASHADHA, 1944 CRL.A NO. 711 OF 2014** **AGAINST THE JUDGMENT DATED 16.07.2014 IN S.C.NO.156/2011 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - I, KASARAGOD / I ADDITIONAL MACT, KASARAGODE (CP 184/2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS** **-I,HOSDRUG)** **APPELLANT/ACCUSED:** **K. RAJENDRAN AGED 43 YEARS, S/O.KINNI, SARKARI HOUSE, SARKARI COLONY, ENNAPPARA, THAYANNUR VILLAGE, HOSDURG TALUK. BY ADV SMT.T.SUDHAMANI** **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **SMT MAYA M.N- P.P** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 17.06.2022, THE COURT ON 28.06.2022 DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.711 of 2014 ## **JUDGMENT** S.C.No.156 of 2011 arose on a report filed by the Sub Inspector of Police, Ambalathara Police Station, under Section 50 of the Abkari Act, 1077 before the Judicial Magistrate of First Class-I, Hosdurg. The report was submitted alleging commission of an offence punishable under Sections 55(a), (b) and (g) of the Abkari Act. The Magistrate committed the case as provided in Section 209 of the Code of Criminal Procedure, 1973, and the Sessions Court, Kasaragod, after taking cognizance of the offences, made over it to the Additional Sessions Judge-I, Kasaragod. After trial, the appellant/accused was convicted and sentenced for the offence punishable under Sections 55(a) and (g) of the Abkari Act. The legality of the said judgment is under challenge in this appeal filed under Section 374(2) of the Code. 2. The allegation against the appellant was that at or about 7.15 a.m. on 13.08.2010, he was found in possession of 2 litres of illicit arrack and 15 litres of wash along with utensils for illicit brewing at the lean-to on the eastern side, 3 Crl.Appeal No.711 of 2014 attached to his residential building. He was caught redhanded by PW6, the Sub Inspector of Police, Ambalathara Police Station. 3. At the trial, PWs.1 to 6 were examined and Exts.P1 to P11 were marked. On the basis of the said evidence adduced by the prosecution, the appellant was questioned under 313(1)(b) of the Code. He denied all the incriminating circumstances appeared in evidence against him. He had submitted a statement wherein he iterated that the case was foisted against him and he did not involve in the alleged act of brewing of illicit arrack or possessing any contraband articles as alleged. The Additional Sessions Judge, after hearing both sides, found that the prosecution satisfactorily proved the guilt of the accused. 4. This appeal was admitted to file on 25.07.2014. As per the order on Crl.M.A.No.4711 of 2014, the sentence imposed on the appellant was suspended and he was granted bail on the conditions stipulated therein. 5. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor. 4 Crl.Appeal No.711 of 2014 6. The learned Public Prosecutor maintains that on the strength of the oral testimony of PWs.1, 4, 5 and 6 and Exts.P1 to P11, the guilt of the accused was satisfactorily proved. The learned counsel appearing for the appellant raised manifold grounds to assail the findings of the trial court. It is contended that the search was not proper. There occurred an inordinate delay in forwarding the contraband and sample to the court. There are irregularities in the submission of material objects before the court, namely, provisions of Section 53A of the Abkari Act were not complied with. Besides, the learned counsel submitted that the evidence of PWs.1 and 6 is not free of blemishes so as to rely on it, in the absence of independent evidence. Accordingly, the learned counsel submits that the conviction of the appellant is illegal and he is entitled to be acquitted. 7. PW6 deposed in detail regarding the circumstances under which he along with his subordinates happened to search the residential premises of the appellant. It was on getting reliable information, that he along with his colleagues 5 Crl.Appeal No.711 of 2014 went to the house of the accused. They took PWs.2 and 3 along with them to the house. PW6 deposed that they found the appellant at the lean-to of that house on its eastern side, where the utensils for distillation of arrack were seen. The appellant was dealing with those articles. 15 litres of wash inside a 50-litre aluminium vessel and 1.5 litres of arrack in a 10-litre plastic can and ½ litre arrack in a 5 litre capacity aluminium pot were found in his possession. On convincing that those articles were arrack and wash, PW6 prepared samples from both. After sealing and labelling, the remaining wash was destroyed and all other articles were taken into custody. Ext.P2 is the mahazar prepared for the seizure of the said articles. In order to arrest the appellant, PW6 prepared Ext.P1 arrest memo. Ext.P6 inspection memo was also prepared. PWs.2 and 3 signed Exts.P1 and P2. After coming back to the police station, PW6 registered the crime as per Ext.P7, First Information Report. 8. PW1 is a Civil Police Officer. He accompanied PW6, among others, to the place of occurrence. PW1 also deposed 6 Crl.Appeal No.711 of 2014 in detail regarding the search, seizure and arrest. PWs 2 and 3 are residents of the same housing colony where the appellant is residing. They stated they have acquaintance with the appellant, and signed Ext.P1 arrest memo and Ext.P2 mahazar. But they denied having seen the search and seizure. By admitting that they signed Exts.P1 and P2, their evidence supports the version of PWs.1 and 6 that they reached the house of the appellant as they claimed. Of course, their evidence has no further use as far as the case of the prosecution is concerned. 9. The oral testimonies of PWs.1 and 6 tally each other. Their evidence has been corroborated by the contents of Ext.P2, which was prepared contemporaneously to the seizure of the contraband and the arrest of the appellant. In the absence of any serious contradiction or inconsistency in their evidence, there is no reason to disbelieve them. They are official witnesses and as part of their official duty, they detected the offence and conducted the process of search and seizure. The appellant has no case that they have any kind of enmity towards him. 7 Crl.Appeal No.711 of 2014 ## 10. The Apex Court in **Karamjit Singh v. State (Delhi Administration) [ AIR 2003 SC 1311]** held that,- “The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down.” In the light of the said principle of law, the evidence of PWs.1 and 6 regarding the arrest and seizure has to be accepted as true. 11. The accused was arrested and the contraband was seized on 13.08.2010. On the same day, Ext.P7 F.I.R. reached the Magistrate. Of course, the samples were produced before the court on 16.08.2020; there was a delay of two days, but the delay has been properly explained. 14th and 15th of August, 2010 were holidays. On the very next working day, 8 Crl.Appeal No.711 of 2014 the samples were produced in court by the Station House Officer of the same police station, who is none other than PW6. In the said circumstances, there cannot be found any missing link in the matter of production of samples before the court. The contention of the learned counsel for the appellant in that regard is not able to be accepted. 12. Ext.P10 is the inventory report, ExtP10(a) is the photograph and Ext.10(b) is the compact disk. A perusal of Ext.P10 would show that the seized articles were produced before the authorised officer, namely, the Deputy Commissioner of Excise, Kasaragod, and the inventory along with certification were produced before the Judicial Magistrate of the First Class-I, Hosdurg. The learned Magistrate duly had certified the inventory and took a photograph of the same. When the Magistrate certifies the correctness of the inventory and that the articles bore the seals and labels, the certificate issued by the Magistrate is primary evidence as provided in sub-section (5) of Section 53A of the Abkari Act. There is absolutely no reason to dispel it. In the circumstances, the 9 Crl.Appeal No.711 of 2014 contention of the learned counsel appearing for the appellant that there was non-compliance with the provisions of Section 53A of the Abkari Act cannot be countenanced. 13. The learned counsel appearing for the appellant placed reliance in the decision reported in **Balakrishna Rai v.** **State of Kerala [2020 (3) KHC 286]** , in order to contend that in the light of the flaws that occurred in the procedural compliance of Section 53A of the Abkari Act, entails discarding the case of the prosecution. Of course, if there is a defect in the procedure to be followed under Section 53A, the same definitely will tell upon the credibility of the case of the prosecution. But in this case, there occurred no procedural infraction as far as the preparation of the inventory or certification by the Magistrate is concerned. In the said circumstances, the principle in the said decision does not come in the aid of the appellant. 14. The learned counsel appearing for the appellant also placed an unreported decision of this Court dated 02.12.2020 in Crl.R.P.No.2026 of 2013 ( **T.Bhaskaran v.** 10 Crl.Appeal No.711 of 2014 **State of Kerala** ) in order to buttress her argument that there are violations of the procedural requirements under Section 53A and hence the prosecution of the appellant under the provisions of the Abkari Act should fail. I found above that there is no such procedural irregularity in this case, and therefore, the said decision is also not of avail to the appellant. 15. Yet another decision relied on by the appellant is **Kumaran P. v. State of Kerala & another [2016 (5) KHC 632]** . In that case, this Court held that the case of the prosecution could not be accepted for the reason that the forwarding note as per which the samples were sent for chemical examination contained blank spaces creating doubts on its genuineness. No doubt, the prosecution is bound to prove before court that the sample drawn from the contraband seized from the possession of the accused has been under proper custody and from such custody it was entrusted with the Chemical Examiner. Any lapse in that process certainly creates doubt regarding the genuineness of 11 Crl.Appeal No.711 of 2014 the certificate obtained from the Chemical Examiner’s Laboratory. In this case, Ext.P9 forwarding note does not contain any such blemishes. The sample was seen duly forwarded to the laboratory and Ext.P11 report was obtained properly. In the light of Ext.P11, it can well be found that the samples were arrack and wash. In the light of the said evidence, the findings rendered by the learned Additional Sessions Judge-I, Kasaragod, that the accused has committed an offence under Sections 55(a) and (g) of the Abkari Act is legal and proper. There is no reason to interfere with the same. 16. Coming to the sentence, the learned Additional Sessions Judge showed maximum leniency. The sentence imposed is simple imprisonment for a period of one year and a fine of Rs.1,00,000/- each for the offences under Sections 55(a) and 55(g) of the Abkari Act. The period of the substantive sentence was directed to run concurrently. I do not find any reason to interfere with the sentence. Hence, the appeal fails and the same is dismissed. 12 Crl.Appeal No.711 of 2014 The appellant shall surrender before the Additional Sessions Court-I, Kasaragod, on 08.08.2022. **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr