Lainan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** ## **THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931** ## **CRL.A.No. 941 of 2003()** **---------------------------------** ## **SC.57/2002 of ADDL. SESSIONS COURT (ADHOC-II), ERNAKULAM.** **....................** ## **APPELLANT/ACCUSED** **---------------------------------** **LAINAN, S/O.ANTO, KUTTIVEEDU, AZHEEKKARA KADAVIL, VYPIN, ERNAKULAM DISTRICT.** **BY ADV. MR.A.X.VARGHESE** ## **RESPONDENT/COMPLAINANT** **-------------------------------------------** **STATE OF KERALA, REP. BY SUB INSPECTOR OF POLICE, NJARARAKKAL POLICE STATION.** ## **BY PUBLIC PROSECUTOR MR.C.M. NAZAR.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** **M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 941 OF 2003 = = = = = = = = = = = = = = = Dated this the 6[th] day of August, 2009.** ## **J U D G M E N T** This appeal is preferred against the conviction and sentence passed by the Addl. Sessions Judge, Adhoc-II, Ernakulam in S.C.57/02. The accused was charge sheeted for the offence u/s 55(a) of the Abkari Act and was convicted thereunder and sentenced to undergo simple imprisonment for a period of six months and to pay a fine of R.1,00,000/- and in default to undergo further imprisonment for one year. It is against that decision the present appeal is filed by the accused. 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) Whether the sentence awarded is proper? **Crl.A. 941 OF 2003** -2- ## **Points:** 3. Heard the learned counsel for the appellant as well as the prosecutor. It is the case of the prosecution that on 14.5.2000 at about 1.15 p.m the accused was found in possession of 9 litres of Indian made foreign liquor contained in a carton near Fortkochi-Vyppin Ferry. He was apprehended and all the 12 bottles were opened and smelt and tasted and thereafter sample was taken from all the 12 bottles and it was sealed in the presence of the accused. He was later arrested, produced and the prosecution continued. 4. PW1 is the independent witness who as usual had turned hostile to the prosecution. PW2 is the police constable who had accompanied PW6. He had deposed before court that while they were proceeding in a jeep doing law and order duty and when they reached near the place of incident they found the accused in a suspicious circumstance with a cardboard box. The Circle Inspector asked him to stop and examined the cardboard box. It was found to contain 12 bottles and on examination it was found it was labeled as 'Salsa' Rum. **Crl.A. 941 OF 2003** -3- Thereafter he was arrested and bottles were brought for the purpose of taking sample and from each bottle sample was taken and it was sealed. The reminder was also produced before Court. He had been cross examined at length and nothing serious has been brought out in the cross examination and he speaks about how the liquid was taken and sampled and sealed. PW3 is a mahazar witness who had admitted his signature in the mahazar. PW4 is a person who had detected the offence. He was the Circle Inspector of Police, Njarakkal. He had spoken about the law and order duty, patrolling etc. and how the accused was found and a cardboard containing 12 bottles of XXX Rum were found in his possession. He also speaks about the way in which the sample was taken and sealed. Thereafter the accused, the seizure mahazar etc. were handed over to the Sub Inspector of Police for further action. He also identified the bottles. He had been cross examined at length and nothing serious is brought out to discredit his evidence except the questions suggesting that there was other independent witnesses available in the locality etc. He had **Crl.A. 941 OF 2003** -4- also spoken about the way in which the sample was taken and sealed. PW6 is the Investigating Officer. He had clearly spoken about the way in which the matter has been proceeded with. It is also admitted by him that the seizure was done on 14.5.2000. The material objects were produced only on 16.6.2001 and he would depose the reason for the delay was on account of the non availability of the vehicle as well as other engagements. He would further reiterate that he was in safe custody of the articles from the date of handing over till he produced it before Court. The learned counsel for the appellant mainly argued on the points the independent witnesses had turned hostile and the delay in sending the sample to the Court and therefore a conviction cannot be had on the basis of the same. 5. It is a well settled position that a mere turning of independent witnesses hostile will not prejudicially affect the case. In the decision reported in _**Sivaraman v. State of Kerala (1981 KLT S.N. Case No.17 page 9)**_ this Court observed that it has become a habit of independent witnesses **Crl.A. 941 OF 2003** -5- to turn hostile. The Court further considered whether under the circumstances the evidence of the official witnesses can be looked into. The Court held that if on a meticulous scrutiny the evidence of independent witnesses are found to be intrinsically reliable and inherently probable, then there is no difficulty in accepting their evidence. I had perused the evidence of PWs.1 and 4 and it would show that they have no axe to grind against the accused. They were only performing their official duty. It was in the afternoon of a day they found the accused with a cardboard box and he was apprehended. Their evidence does not suffer from any infirmity. So the evidence of PWs.1 and 4 can be accepted. 6. The next point seriously argued by the learned counsel is the delay. It is true there is almost a month's delay in producing the material objects before Court. The Circle Inspector of Police had clearly stated that immediately after taking the sample the accused was handed over to the Sub Inspector of Police along with the material objects. PW6, the Sub Inspector of Police would depose before Court that on **Crl.A. 941 OF 2003** -6- account of other duties and non availability of the vehicle he was not in a position to produce the samples before Court in time. But he asserts and reiterates that the samples were in his safe custody till the date of production. The very purpose of a leak proof procedural formalities to be observed in these types of cases are to ensure that it is the liquid which is possessed by the accused that is taken as the sample and it is that sample which is produced before Court and that is sent for chemical analysis. If there is delay here and there it may not be of a fatal consequence to the prosecution. Here in this case the Circle Inspector had taken the care to produce all the 12 bottles before Court. Samples were taken from all the 12 bottles and sealed. When it was sent for chemical analysis the analyst has also stated that all the seals were in tact and it tallied with the sample seal provided. So in such circumstances the evidence tendered by PW6 that it was in his safe custody and he had handed over it in a careful manner has to be accepted and no prejudice has been caused to the accused by the delay and the conscience of the Court is also **Crl.A. 941 OF 2003** -7- very clear that things has been done methodologically in this case. So that argument cannot be made use for acquitting the accused in this case. Therefore I hold that the accused is guilty of the offence alleged and therefore the conviction does not call for any interference. 7. Now turning to the question of sentence. The accused had been sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.1,00,000/and in default to undergo simple imprisonment for a period of one year. Considering the quantity involved and the attending circumstances and the factum of the age of the accused as well as his responsibility to look after the family, I feel that some leniency can be shown by reducing the sentence of imprisonment to three months and to reduce the default sentence from one year to two months. In the result the Crl.Appeal is disposed as follows: (1) The finding of guilt u/s55(a) of the Abkari Act is confirmed. 2) The sentence is modified and the accused is ## **Crl.A. 941 OF 2003** -8- sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs.1,00,000/- and in default of which he is directed to undergo a further imprisonment for a period of two months. (3) He is also entitled to set off as contemplated under S.428 Cr.P.C. (4) The lower Court shall execute the sentence. **M.N. KRISHNAN, JUDGE.** ul/- ## **Crl.A. 941 OF 2003** -9- **M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 941 OF 2003 = = = = = = = = = = =** **==> picture [136 x 10] intentionally omitted <==** **6[th] August, 2009**