P.A. Haris v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **MONDAY, THE 09TH DAY OF DECEMBER 2019 / 18TH AGRAHAYANA, 1941** ## **CRL.A.No.2764 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 132/2005 DATED 24-10-2008 OF ADDITIONAL SESSIONS COURT (ADHOC-II)KASARAGODE** **AGAINST THE ORDER/JUDGMENT IN CP 297/2004 DATED 11-01-2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,KASARAGOD** ## **APPELLANT/ACCUSED:** **P.A.HARIS, S/O.AMU @ AHAMMED, 25/4, H.NO. X/754, PODIPALLAM, CHENGALA PANCHAYATH, KASARGOD DISTRICT.** ## **BY ADV. SRI.KODOTH SREEDHARAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR, KASARAGOD EXCISE RANGE, THROUGH THE, GOVERNMENT PLEADER, HIGH COURT OF KERALA,ERNAKULAM.** **SRI. B. JAYASURYA-SR.PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeal No.2764 of 2008 2 ## **JUDGMENT** **The accused in S.C. No.132 of 2005 on the files of the Additional Sessions Court (Adhoc-II, Kasaragod is the appellant herein. He was convicted for the offence punishable under Section 55(a) of the Abkari Act ('the Act') and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- with a default sentence of rigorous imprisonment for another period of one year.** **2. The gist of the Prosecution allegation is that on 17.10.2001 at 7.00 a.m., the appellant was found transporting 4,000 small packets of arrack kept in 8 gunny bags in a car bearing registration No.KL/14/A-9377 through Cherkala Bandadukka State Highway to the west of the house of one Gangadharan. The Prosecution case is that PW1, the detecting Excise Inspector,Kasaragod Range and the** Crl.Appeal No.2764 of 2008 3 **patrol party consisting of PW7 Preventive Officer of the same Range and others came across the car driven by the appellant and after interception of the vehicle and the inspection thereof it was revealed that 4,000 packets of arrack of 100 ml.each were kept in 8 gunny bags in the back seat of the vehicle. One of the gunny bags was opened in the presence of independent witnesses and it was found to contain 500 small packets of 100 ml.each. On conducting smell and taste test, it appeared to the detecting officer that the small packets contained arrack. After opening three small packets, 290 ml.of liquor was collected in a 375 ml. of bottle. It is alleged that the bottle was sealed using the personal seal of PW1 and labelled in accordance with the law in the presence of independent witnesses. The gunny bag containing the remaining plastic covers out of 500 was sealed and labelled along with other 7 gunny bags. The appellant was arrested at the spot by PW1. The material objects and sample bottle** Crl.Appeal No.2764 of 2008 4 **were taken into his custody and evidencing the search seizure and arrest, Ext.P1 seizure mahazar and Ext.P2 arrest memo were prepared. He himself registered Ext.P3 occurrence report and submitted Ext.P4 property list before the Committal court. The investigation of the case was later taken over by PW5, the C.I.of Excise,Kasaragod Range and PW6, the Excise Inspector who succeeded him, laid final report before the Committal Court.** **3. The case was committed to the Court of Session, Kasaragod from where it came to be made over to the Additional Sessions Court (Adhoc-II), Kasaragod where charge framed against the appellant for offence punishable under Section 55(a) of the Abkari Act, was denied when it was read over and explained.** **4. The Prosecution examined PWs.1 to 7 and adduced Exts.P1 to P7 and also MO-1 gunny bag containing packets of arrack in evidence. When the appellant was questioned with respect to** Crl.Appeal No.2764 of 2008 5 **incriminating evidence, he only said that he was falsely implicated. No defence evidence was adduced despite the fact that he was called up to enter on defence.** **5. The court below after considering the entire evidence on record and believing the testimonies of the official witnesses who are PWs.1 and 7, held that accused transported 4,000 packets of arrack kept in 8 gunny bags and committed offence punishable under Section 55(a) of the Act. The Court below did not find any delay in production of material objects. It also did not come across any circumstances to doubt the safe custody of the contraband liquor either with the seizing officials or the court concerned.** **6. I heard the learned counsel appearing for the appellant as well as the learned Public Prosecutor.** **7. The learned counsel for the appellant submitted that the testimonies given by official** Crl.Appeal No.2764 of 2008 6 **witnesses were insufficient to prove the prosecution case that the accused possessed and transported 4,000 packets each containing 100 ml. of arrack. It was submitted that in the absence of independent evidence being available, the court below ought to have approached the evidence of the official witnesses with great caution and suspicion. It was pointed out that the time of arrest was not mentioned in the arrest records and the same was not taken note of by the court below. Another contention is that there was nothing to show that sample bottle contained the personal seal of the detecting officer and further it was in safe custody of the seizing officials and the court until it was allegedly received by the chemical laboratory. It is also one of the arguments that, by all means, the sample bottle also might have been returned with other material objects to the Station House under the orders of the committal court and there is nothing on record to show that the sample bottle along with other** Crl.Appeal No.2764 of 2008 7 **material objects remained in the safe custody of the Excise officials. On the other hand, the learned Public Prosecutor sought to sustain the impugned judgment urging that the testimonies of PWs.1 and 7 are credible, trustworthy and reliable and there is nothing on record to point out that there was delay in production of material objects in court or there was any breach of any legal formalities as to arrest, seizure, sampling and labelling also.** **8. PW1, the detecting officer said that he intercepted the vehicle bearing registration No. KL/14/A-9377 driven by the accused at the place of occurrence described in Ext.P7 site plan prepared by PW2, Village Assistant and conducted search of the car along with PW7 who was his subordinate preventive officer attached to the same Range. It is further said that the search of the car in the presence of independent witnesses revealed that 4,000 small packets containing arrack kept in 8 gunny bags were concealed in the back seat of the** Crl.Appeal No.2764 of 2008 8 **car. It is true that the independent witnesses PWs.3 and 4 turned completely hostile except admitting their signatures in Ext.P1 seizure mahazar.** **9. PWs. 1 and 7 testified that one among the 8 gunny bags was opened and it was found to contain 500 small packets of 100 ml.each. The witnesses clearly admitted that except the one above mentioned, none of the other gunny bags was opened nor the packets kept therein subjected to any sort of smell and taste test. No samples were also taken from any of the unopened bags. It is further stated that three packets taken out from one of the gunny bags were subjected to smell and taste test and it appeared that the liquor was arrack. 290 ml.of liquor,thereafter, was collected in a small bottle of 375 ml. It was, thereafter, sealed using the personal seal of PW1 and labelled in accordance with the law. Ext.P1 mahazar discloses that these formalities were performed at the place of occurrence itself. The arrest of the** Crl.Appeal No.2764 of 2008 9 **appellant is proved by Ext.P2 arrest memo prepared by PW1. The vehicle was also taken into custody and it was produced before the authorized officer in accordance with the law.** **10. The argument advanced by the learned counsel for the appellant is that Ext.P2 arrest memo did not contain the time of arrest. According to me, the said contention has no significance because the time of arrest is even otherwise evident from Ext.P1 seizure mahazar.** **11. Looking at testimonies of PWs.1 and 7, there appear to be no ground to reject their evidence as untrustworthy and unreliable. Being official witnesses, their evidence is entitled to more credence than that which is ordinarily given by independent witnesses. The legal presumption is that acts of official witnesses shall be taken as correctly and regularly performed. Despite, cross examination of the official witnesses, nothing could be brought out to discredit them.** Crl.Appeal No.2764 of 2008 10 **12. When the evidence of PWs.1 and 7 is taken along with, the legal formalities performed at the spot and the contemporaneous records prepared by the officials, there appear to be no ground at all to disbelieve the evidence given by the official witnesses. Ext.P4 property list prepared by the officials shows that it reached the Committal court on the same day itself along with material objects. There is no sort of delay at all to arouse any kind of suspicion in the prosecution case. Exts.P1 and P2 Seizure mahazar and Arrest memo respectively also reached the court the same day itself. No suggestion is seen to have been put from the side of the appellant that the officials had any reason to implicate them in any false crime. There is no allegation that official witnesses had any motive or other reasons for falsely implicating him in the crime. In the absence of a defence contention or suggestion that the official witnesses had any motive to rope him in a false crime, the** Crl.Appeal No.2764 of 2008 11 **testimonies given by PWs.1 and 7 shall be regarded as credible and trustworthy. This aspect was gone into by the court below and taken as a ground for believing PWs.1 and 7. Merely because the independent witnesses did not support the prosecution case, the evidence given by the official witnesses cannot be thrown over board for want of corroboration.** **13. I also find there is no merit in the argument that there is nothing on material to ensure that the sample taken from the spot was the same sample that reached the chemical laboratory, for examination. In Ext.P1 seizure mahazar, there is adequate mention that PW1 affixed his personal seal on the sample bottle as well as the other material objects seized. Ext.P5 forwarding note also shows that it contained personal seal of PW1. This sufficiently assures that the court which received the sample bottle had opportunity to compare the seal and make sure that there was no tampering. Further, from Ext.P6 chemical report** Crl.Appeal No.2764 of 2008 12 **also, it could be seen that the same sample forwarded from the court reached the laboratory in tamper free condition.** **14. The learned counsel for the appellant submits that the sample bottle was, at one point of time, returned to the Station House and later there was nothing to ensure that the same sample was produced back before the court for despatch to chemical laboratory. I am of the opinion that this argument is totally misconceived when it is read in the light of Ext.P6 chemical report as well as Ext.p4 property list. It is crystal clear from these documents that sample bottles were produced in court on the same day of seizure and necessary steps were also taken for forwarding the same on the same date of production to the chemical laboratory for test analysis.** **15. The learned counsel for the appellant cited decisions in Sasidharan v. State of Kerala [2007 KHC 3404], Raju v.State of Kerala [2012 KHC** Crl.Appeal No.2764 of 2008 13 **877] and Sumathy v. State of Kerala [2016(4) KHC 225] to contend for the position that the prosecution has a duty to establish that there existed connecting link at all stages of case right from the time of seizure of the sample till it finally reached in the chemical laboratory and the sample seized remained in tamper free condition all throughout. It was argued that in the absence of connecting links with the sample being established, it will give sufficient room for doubting that a false case was brought against the accused.** **16. I have already discussed the evidence and I am satisfied that there is nothing to show that at any point of time, there had been any occasion for the court to suspect that the sample bottle was in tampered condition. Therefore none of these decisions would come to the aid of the appellant at all. Ext.P6 chemical report shows that the sample contained 27.22% volume of ethyl alcohol which also establishes that the liquor seized from** Crl.Appeal No.2764 of 2008 14 **the possession of the appellant was illicit liquor. Therefore, in view of the forgoing discussion, I am satisfied that the court below has rightly come to the conclusion that the accused committed offence punishable under Section 55(a) of the Act. There is no ground at all justifying interference with the impugned judgment and accordingly I confirm the same.** **17. But,however, the sentence imposed appears to be rather harsh when it is considered in the in the light of the proved quantity of arrack seized from the possession of the appellant. What is proved is the seizure of 500 packets of arrack kept in a gunny bag under the back seat of the car. Admittedly, other packets of arrack allegedly contained in other gunny bags were neither opened nor put to any test. Thus taking a lenient view in favour of the accused, I am of the opinion that** **the sentence on appellant requires to be substantially modified. In the facts and circumstances of the case, it is desirable to** Crl.Appeal No.2764 of 2008 15 **modify the sentence to Simple Imprisonment for a period of three months while the fine sentence already imposed needs to be maintained.** **18. In the result, the appeal is allowed in part modifying the substantive sentence of imprisonment as follows:** **The appellant is sentenced to undergo simple imprisonment for a period of three months and pay fine of Rs.1,00,000/-. In the case of default in the payment of fine, he shall undergo another term of simple imprisonment for one month more.** **19. The learned counsel for the appellant submits that pursuant to the direction of this Court at the time of suspension of sentence, the appellant had deposited Rs.25,000/- out of the fine amount of Rs.1,00,000/- imposed as per impugned judgment. If such a payment has been actually made, the court below will ensure that the balance amount of fine alone is realized,** Crl.Appeal No.2764 of 2008 16 **after giving credit to the payment already made.** **The Registry is directed to supply a copy** **of this judgment to the appellant free of cost,** **forthwith.** **Sd/-** ## **T.V.ANILKUMAR** PKK **JUDGE**