KUMARAN v. STATE

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN TUESDAY, THE 4TH DAY OF SEPTEMBER 2012/13TH BHADRA 1934 CRL.A.No. 237 of 2004 (C) ------------------------SC.42/2002 of ADDITIONAL DISTRICT & SESSIONS JUDGE (ADHOC), FAST TRACK COURT NO.1, MANJERI APPELLANT(S)/ACCUSED: -------------------- KUMARAN, S/O. AYYAPPAN, THANDASSERI HOUSE, VETTAM, TIRUR TALUK MALAPPURAM DISTRICT. BY ADV. SRI.T.KRISHNAN UNNI (SR.) RESPONDENT(S)/STATE/COMPLAINANT: -------------------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY G.P.SMT.LOWSY A THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.7.2012, THE COURT ON 04-09-2012 DELIVERED THE FOLLOWING: ## **P.S. GOPINATHAN, J.** **...................................................... Crl.A.NO.237 OF 2004 ...................................................... Dated this the 4[th] day of September, 2012** ## **JUDGMENT** The Circle Inspector of Excise, Thirur range, who was examined as PW6, in S.C.No.42/2002 on the file of the Additional Sessions Judge (Adhoc-I), Manjeri, prosecuted the appellant accusing offences under Sections 55 (a) and 8(1) of the Kerala Abkari Act with an allegation that, at 8.10 p.m on 25.4.2000, along Karikkanchira - Kunjipalli road, the appellant was found moving with 10 litres of illicit arrack in two jerry cans which were marked as MO1 series, while the Circle Inspector of Excise, who was examined as PW1, in the circle office, moving on law and order duty. 2. PW1 seized MO1 with liquor. 300 mls was taken as sample from each can for which Ext.P1 mahazer was prepared. He registered a case for which Ext.P2 crime and occurrence report was prepared. The appellant was arrested. The appellant and material objects along with Exts.P1 and P2 were produced before the range office where PW5 was the Circle Inspector. PW5, after acknowledging the **Crl.A.NO.237 OF 2004** : 2: custody of the appellant and the material objects, re registered a case alleging the above offences for which Ext.P6 crime and occurrence report was prepared. The appellant and the material objects were produced before the court on the next day along with Ext.P8 property list. PW5 then filed Ext.P7 forwarding note to send the sample for analysis. By the time, PW5 was succeeded by PW6. PW6 proceeded with the investigation. He prepared Ext.P10 scene mahazer and after getting Ext.P9 certificate from the Chemical Examiner, a charge sheet was submitted before the Judicial Magistrate of the First Class, Tirur. The learned Magistrate on finding that the offences alleged are exclusively triable by a court of session, by order dated 31.1.2002 committed the case to the Court of Session, Manjeri. From there it was made over to the Additional Sessions Judge. 3. The appellant in response to the process, entered appearance before the Additional Sessions Judge and pleaded not guilty when the charge was framed, read over and explained. Therefore the appellant was sent for trial. On the side of the prosecution, Pws 1 to 6 were examined. Exts.P1 to **Crl.A.NO.237 OF 2004** : 3: P10 and MO1 series were marked. After closing the evidence for the prosecution, the appellant was questioned under Section 313 of the Code of Criminal Procedure. He denied the incriminating evidence and further stated that he was falsely implicated as he declined to be a witness. However, no defence evidence was let in. The learned Additional Sessions Judge, on appraisal of the evidence, arrived at a finding in favour of the prosecution. Consequently, the appellant was convicted for the above offences and sentenced to rigorous imprisonment for 7 years and a fine of Rs.1,00,000/- with a default sentence of simple imprisonment for one year. Aggrieved by the above conviction and sentence, this appeal is preferred. 4. I have heard Adv. Sri. Sivadasan, the learned counsel appearing for the appellant and Smt. A Lowsy, the learned Government Pleader. The judgment impugned and the evidence on record were perused. 5. PW1 would depose that at 8.10 p.m on 25.4.2000 while he moving on patrol duty, the appellant was found coming across with MO1 series jerry cans in his hand. The **Crl.A.NO.237 OF 2004** : 4: appellant was intercepted. The contents in MO1 series were tested by smell and taste and convinced that the liquid contained in both cans were nothing but illicit arrack. The appellant was arrested. 300 mls was taken as sample in two bottles. The sample bottles as well as MO1 series were sealed then and there, for which Ext.P1 mahazer was prepared. He also proved Ext.P2 crime and occurrence report and Ext.P3 arrest memo. He would further depose that the appellant along with material objects were handed over to PW5. 6. PW2, the Excise guard accompanying PW1 had given the evidence corroborating with the evidence of PW1. 7. Pws 3 and 4 are attestors to Ext.P1. Though they admitted having attested Ext.P1, denied witnessing of the seizure and arrest. Exts.P4 and P5 are the relevant portions of the CD statements. Though they were subjected to cross examination by the Public Prosecutor with permission of court, no other material was disclosed to support the prosecution case. 8. PW5 would depose that on 20.6.2000 the **Crl.A.NO.237 OF 2004** : 5: appellant and the properties were produced before him. He re registered a case. Exts.P6, P7 and P8 were also proved. 9. PW6, the successor of PW5 would depose that he completed the investigation and submitted the charge sheet. He had also proved Exts.P4 and P5. He would further prove Ext.P9 the report of the Chemical Examiner and Ext.P10 Scene Mahazer. 10. The trial court believed the evidence of Pws 1 to 6 and arrived at a finding that the prosecution witnesses are believable. Ext.P9 would show that the sample contained 18.35 and 18.02% by volume of ethyl alcohol. 11. According to Pws 1 and 2, the nature of the liquid was tested by smell and taste and was convinced that it was nothing but illicit arrack. Their evidence on that aspect was not at all challenged in cross examination. Their evidence is further corroborated by Ext.P9. There is no case for the appellant that the liquid contained in MO1 series were not illicit arrack. 12. The learned counsel for the appellant raised contentions that the evidences of Pws 1 and 2 are not **Crl.A.NO.237 OF 2004** : 6: believable. There is no material on record to come to a conclusion that the material objects and the samples reached the court without tampering and that Ext.P9 report is in respect of the sample taken from the liquid, seized from the appellant. It was also argued that Ext.P9 certificate was not put to the appellant at the time when he was questioned and, therefore, no reliance can be given to Ext.P9 and that the appellant is entitled to an order of acquittal. In support of the arguments, the learned counsel relied upon the decisions reported in Sathi v. State of Kerala ( 2007(1) KHC 778), Jayakumar @ Kolusu Jayan v. State of Kerala (2007 (4) KHC 236), Sivadasan v. State of Kerala (2007(3) KHC 739) and Sasidharan v. State of Kerala (2007 (1) KLT 720). 13. In the light of the argument advanced, I had critical scrutiny of the evidence, especially the evidence of Pws 1, 2, 5 and 6. Though they were subjected to searching cross examination, no material was disclosed to disbelieve them or to show that they were any way motivated against the appellant to cook up a case of this nature. The appellant had no any such suggestion on that aspect. Therefore, the plea of **Crl.A.NO.237 OF 2004** : 7: the appellant that he was falsely implicated does not appear to be probable. 14. Now it can be examined whether the evidence of Pws 1,2,5 and 6 are reliable to conclude that there was proper sampling and that the samples were forwarded to the court without tampering and that Ext.P9 is relating to the sample of liquor seized from the appellant. Pws 1 and 2 are consistent that the samples were taken from each can then and there and the sample bottles were sealed. According to Pw1, the material objects and the samples along with the appellant were produced before the range office. The evidence of PW5 would show that he got the custody of the appellant and the materials objects from PW1. PW5 produced the appellant and the materials objects before the court after re registering a case by Ext.P6 crime and occurrence report. Exts.P7 and P8 are the forwarding note and the property list prepared by PW5. Going through Exts.P1, P2,P6,P7 and P8, it is seen that MO1 series and the sample bottles were sealed. Exts.P6 to P8 also would show that those documents along with the material objects were produced before the court on 26.4.2000, i.e. on **Crl.A.NO.237 OF 2004** : 8: the next day of the seizure. So, absolutely, there is no delay in producing the materials objects. There is no change of hands except PW1 and 5. Referring to Ext.P7, the learned counsel for the appellant would argue that Ext.P7 did not contain the seal of either PW1 or PW5 and, therefore, it could not be said that the samples were forwarded to the court without tampering. It is true that Ext.P7 did not contain the seal of PW1 and PW5. For that reason, I find that the prosecution case cannot be disbelieved because the evidence of Pws 1 and 5 coupled with Exts.P1,P2 and P6 to P8 would show that on the next day of the seizure the samples and the materials objects were produced by Pw1 before PW5, who in turn produced the same before the court on the same day with Ext.P8 property list. There is nothing on record to show that any other person handled the material objects and the samples. The samples and the material objects were produced before the court in a sealed condition. The sealing of the sample is specifically noted in Ext.P8. It is seen by Ext.P8 that, the Magistrate had ordered to verify and receive the same. It was received and entered in the thondi register on the same day by the **Crl.A.NO.237 OF 2004** : 9: Junior Superintendent. Suppose there was no seal or the seal was tampered, definitely the committal court would not have accepted the sample. Exts.P7 and P9 would show that the samples were sealed by the learned Magistrate again and forwarded to the Chemical Examiner. Chemical Examiner had certified that the seals on the samples were intact. Therefore, even if there is any omission in the forwarding note to affix specimen seal of Pws 1 and 5 since the samples and materials objects were produced before the Magistrate on sealed condition with minimum delay and it was forwarded by the Magistrate to the Chemical Examiner in the same condition and the Chemical Examiner certifying that the seal was intact, there is nothing to conclude that the samples were any way tampered before it reaching the chemical Examiner. 15. Having due regard to the nature of the evidence on record, I find that the decisions referred by the learned counsel for the appellant have no application to the case on hand. In Sathi's case (supra), the material objects were found not sealed. There is no mention in the property list that the material objects of the samples were sealed. So, the ratio of **Crl.A.NO.237 OF 2004** : 10: that decision cannot be applied to the case on hand. In Jayakumar's case(supra), **,** there was much delay in forwarding the samples and that there was no evidence to conclude that the material objects were properly sealed. In Sivadasan's case (supra)also, the trial court doubted the nature of the seal which was alleged to have been put on the contraband. In that case, it was also found by the learned Judge that no specific question was put to the appellant regarding the report. In this case, there is no suggestion to any witness regarding any tampering of the sample. Even though it is seen that finding of the Chemical Examiner was not put to the appellant, it was put to the appellant that Pws 1 and 2 had deposed that the liquor seized was illicit arrack. Ext.P9 only supports the evidence of PW1 that the liquid contained in MO1 series was nothing but illicit arrack. Since the nature of the liquid deposed by Pws 1 and 2 are put to the appellant and he denied the correctness, the omission to put Ext.P9 again to the appellant is not much significant. In Sasidharan's case (supra), there was no evidence regarding the sampling and sending the same in sealed packet to the Chemical Examiner. **Crl.A.NO.237 OF 2004** : 11: In this case, Pws 1 and 2 are consistent that the samples were taken from the spot and the samples along with MO1 series were sealed then and there. Their evidence on that aspect is corroborated by Ext.P1, P2, P6, P7 and P8. Therefore, I find that the lower court had correctly appreciated the evidence on record and come to the conclusion. The conviction under challenge requires no interference. 16. Regarding sentence, I find that no previous conviction or bad antecedent is proved against the appellant. The appellant was then aged 63 years old. In the above circumstance, after taking into account of the quantity of the contraband seized and the age of the appellant, I find that the appellant is entitled to a little leniency in sentence and that a substantive sentence of simple imprisonment for nine months with the minimum fine as imposed by the trial court would meet the ends of justice. In the result, this appeal is allowed in part. While confirming the conviction, the substantive sentence is reduced to simple imprisonment for nine months. The minimum fine imposed by the trial court is sustained with default sentence of **Crl.A.NO.237 OF 2004** : 12: simple imprisonment for a further period of six months. The appellant is directed to surrender before the trial court which shall see the execution of sentence and report compliance. **Sd/-** **P.S. GOPINATHAN, JUDGE.** Cl /true copy/ P.S. to Judge # **Crl.A.NO.237 OF 2004** : 13: