Krishnan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **FRIDAY, THE 24TH DAY OF FEBRUARY 2012/5TH PHALGUNA 1933** **CRL.A.No. 1329 of 2003 ( )** **-------------------------SC.312/1999 of ADDL.DISTRICT AND SESSIONS COURT,FAST TRACK(ADHOC-I), KOZHIKODE, DATED 24-04-2003** **APPELLANT/ACCUSED** **-----------------** **KRISHNAN, AGED 37, S/O GOPALAN, CHETTIYRIMEETHAL HOUSE, EDAKKARA AMSOM AND KOLAKKAD DESOM, KOYILANDY TALUK, KOZHIKODE DIST.** **BY ADVS.SRI.VARGHESE C.KURIAKOSE SRI.SANTHARAM.P** **RESPONDENTS/COMPLAINANTS: -------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.SREEJITH V.S.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MJL** ## **N.K.BALAKRISHNAN, J. ---------------------------------------------------Crl.A.No.1329 of 2003 ---------------------------------------------------Dated this the 24th day of February, 2012** ## **Judgment** The appellant stands convicted for offence punishable under Section 55(b) and (g) of the Abkari Act and was sentenced to undergo R.I. for two years and to pay Rs.One lakh as fine and in default to undergo S.I. for nine months. 2. The case was detected on 5.2.1999 at about 9 PM. P.W.6, the S.I. of Police, Atholi on getting information that the accused was engaged in distillation of illicit arrack, went along with his police party to the house compound of the appellant. They reached the place at about 8.30 PM. The appellant was seen engaged in distillation of illicit arrack in the courtyard of that house. That house stands in the name of his father Gopalan as seen from Ext.P1 ownership certificate issued by P.W.1. Actually it was in the process of distillation. The aluminium pot/vessel at the bottom portion contained the wash. There were two other pots kept above it. The top most one evidently contained water kept for condensation of the gaseous form into ethyl alcohol. Crl.A.1329/03 2 From the pot there was a small pipe fitted to a pot outside so as to cause falling of ethyl alcohol in drips. All those utensils and apparatus were taken up and examined. After taking sample from the wash contained in the bottom most pot, the remaining wash was destroyed. The sample was packed, sealed and labelled in the presence of the independent witnesses. The other vessels and pots were also seized as per Ext.P2 seizure mahazar. Based on Ext.P2, the FIR was registered. The investigation was conducted by P.W.7, a Head Constable. Thereafter charge sheet was laid by P.W.6. The court below accepted the evidence led by the prosecution and thus the appellant was convicted and sentenced as mentioned above. 3. P.W.1 to P.W.7 were examined and Exts.P1 to P8 were marked. Ext.D1 was also marked on the side of the defence. Material Objects, M.O.I to M.O.IV were also identified and marked. 4. The learned counsel for the appellant submits that there is inconsistency in the evidence as to the place where the accused was alleged to have been engaged in distillation. P.W.2, an independent witness who claims to have supported the Crl.A.1329/03 3 prosecution says that the contraband articles were brought to the courtyard from the kitchen portion of the house whereas P.Ws.5 and 6 stated otherwise. It is also pointed out that there is no evidence to show that the house in front of which the distillation was alleged to have been done belongs to the accused. Ext.P1 shows that the house stands in the name of Gopalan who as per the records is the father of the appellant. 5. As already stated, the incident took place at about 9 PM. The learned counsel for the appellant submits that it is quite unlikely that P.W.2 could be present at the time and place mentioned above. However, the evidence given by P.W.2 as to how he happened to be present was not seriously assailed during cross- examination. It was asserted by P.W.2 that from the big vessel, which evidently contained wash, samples were taken in two bottles and all those bottles were packed and sealed in his presence. Labels were also affixed on the sample bottles. P.W.6 says that on the labels affixed on the sample bottles the signatures of the accused and the witnesses were obtained. The evidence so given by P.W.6 was also not effectively challenged in cross-examination. His evidence stands corroborated by P.W.5, a Crl.A.1329/03 4 police constable who had accompanied P.W.6 when he had gone for detection of this case. 6. Ext.P2, the seizure mahazar and Ext.P3, the FIR contain the detailed description of the arrest and seizure and sampling are narrated in detail. Exts.P2 and P3 reached the court immediately on the next day, i.e., on 6.2.1999. The learned Public Prosecutor would submit that since the offence was detected at about 9 PM on the previous day and since the FIR, the seizure mahazar and arrest memo reached the court immediately on the next day, as can be seen from the endorsement made by the learned Magistrate, it cannot be said that there was any delay in reporting the arrest and seizure. The learned Public Prosecutor relies upon the Division Bench decision of this court in **Ravi v. State of Kerala** (2011(3) KLT 353) where it was held that it is not necessary to produce the articles seized before the Magistrate forthwith. It was also held what was enjoined by the statute is only that the seizure of the property should be reported forthwith to the court. The learned counsel for the appellant submits that it was also held in that decision that the Abkari Officer cannot keep the property and produce it Crl.A.1329/03 5 leisurely and that there should be explanation for the delay when there is delayed production of the property. But the learned Public Prosecutor submits that P.W.6 has given evidence that till the properties were produced in court, those properties were in his custody. That evidence also remains unshaken. The property list was prepared on 20.2.1999 and the properties reached the court on 3.3.1999. It is therefore that there was a delay of about four weeks in producing the properties before the court. But since the seizure was reported immediately and also because the evidence given by P.W.6 is that the properties were under his custody till the same produced in court, it cannot be said that there was unexplained delay so as to upset the finding of guilt. Though the other independent witnesses turned hostile, the evidence given by P.Ws.6 and 5 was to some extent corroborated by P.W.2. Both sample bottles were sent for chemical examination. Ext.P6, the report of the chemical examiner shows that both samples contained 11.21 percent by volume of ethyl alcohol. That would sufficiently prove that the samples were taken from the wash found in the bottom most pot as stated above. Since the wash and other apparatus used or intended for Crl.A.1329/03 6 distillation were found, it can be safely concluded that the prosecution could prove the offence against the appellant under Section 55(g) of the Act. Similarly, since the evidence given by P.Ws.5 and 6 would show that the appellant was actually engaged in distillation, though the arrack obtained by such distillation was not found out, still the conviction can be sustained, the learned Public Prosecutor submits. According to the prosecution, it was only at the initial stage that the case was detected and that was why there was no ethyl alcohol dripped into the pot connected to the other end of the hose. The evidence given by P.Ws.5 and 6 was accepted by the trial court after a thorough scrutiny. I find no reason to hold otherwise. As such the verdict of conviction is only to be confirmed. 7. The learned counsel for the appellant submits that no other case was registered against the appellant prior to or after the detection of this case. It is also submitted that he is the sole bread-winner of the family and that there is no other source of income for his family members and so if he is sent to jail, his entire family members would be put to destitution. Considering all the aspects, I find that the sentence can be modified to a Crl.A.1329/03 7 certain extent. 8. In the result, this appeal is disposed of as stated below: In supersession of the sentence awarded by the court below, the appellant is sentenced to undergo R.I. for three months and to pay Rs.One lakh as fine and in default the appellant will undergo S.I. for three months. **sd/N.K.BALAKRISHNAN, JUDGE.** //True copy// P.A. to Judge srd Crl.A.1329/03 8