PRASAD and R. MOHANAN v. THE STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **TUESDAY, THE 21ST DAY OF JUNE 2016/31ST JYAISHTA, 1938** **CRL.A.No. 249 of 2009 (A) --------------------------** **SC 407/2006 OF ADDITIONAL SESSIONS COURT (ADHOC-FAST TRACK)-II, PATHANAMTHITTA.** **.........** **APPELLANTS/ACCUSED:** **------------------** **1. PRASAD, S/O.SUKUMARAN,** **EDAMANASSERI VEEDU,** **KOTTANGAL VILLAGE, MALLAPPALLY, PATHANAMTHITTA.** **2. R.MOHANAN, S/O.RAMAKRISHNAN, PANNIMALAYIL HOUSE, VAIPUR DESOM, ANIKKADU VILLAGE, PATHANAMTHITTA.** **BY ADV. SRI.C.S.MANILAL** **RESPONDENT/STATE:** **-----------------** **THE STATE OF KERALA, REPRESENTED BT PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. MAYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## B. KEMAL PASHA, J ================= Crl.Appeal No.249 of 2009 ================= Dated this the 21[st] day of June, 2016 ## J U D G M E N T The appellants are accused in Sessions Case No.407 of 2006 of the Additional Sessions Court (Adhoc-II), Pathanamthitta, who stands convicted under Section 8(2) of the Abkari Act and each of whom sentenced to undergo rigorous imprisonment for two years and to pay a fine of `1,00,000/-, in default to undergo rigorous imprisonment for six more months. 2. The prosecution case is that on 20.08.2004, PW-1 Circle Inspector of Excise and party were engaged in inspecting toddy shops of Mallappally Taluk and while so, they reached TS No.7 at 9.15 p.m. On reaching the toddy shop, they could see A1 sitting at the store room of the toddy shop and pouring down the contents of a red bucket on to the floor. He was Crl.A.No.249 of 2009 2 caught red handed and the bucket was examined. The residue contained in the bucket and its smell proved that it was arrack. Thereafter, PW-1 and party conducted a search at the toddy shop and they could seize a can containing 3 litres of arrack. 3. A1 was the Manager of the toddy shop and A2 was its licensee. A sample of 200 ml was drawn from the contraband and the entire articles were seized through Exhibit-P1 mahazar. A1 was placed under arrest through Exhibit-P2 arrest memo. PW-1 and party took the material objects, the records and A1 to the Excise Range Office, Mallappally. PW-5, Excise Inspector, Mallappally registered the crime and occurrence report through Exhibit-P3. He produced properties before court along with A1 and the records. Forwarding note was given for sending the sample for chemical analysis, a copy of which is Exhibit-P6. 4. PW-6, Excise Inspector, Mallappally, conducted the investigation. Thereafter, the Crl.A.No.249 of 2009 3 investigation was taken over by PW-7, Excise Inspector. On getting Exhibit-P8 certificate of chemical analysis, which shows that the sample contained 33.39 % by volume of ethyl alcohol, he filed the complaint. 5. On the side of the prosecution, PW-1 to PW8 were examined, Exhibits-P1 to P9 were marked and MO-1 to MO-3 were identified. No defence evidence was adduced. The court below found the accused guilty of the offence punishable under Section 8(2) of the Abkari Act, convicted them thereunder and sentenced them as aforesaid. 6. Heard the learned counsel for the appellants and the learned Public Prosecutor. 7. The learned counsel for the appellants has argued that the sample seal was not furnished in Exhibit-P6, the copy of the forwarding note and therefore, it cannot be said that Exhibit-P8 pertains to the sample allegedly drawn in this case. It has also Crl.A.No.249 of 2009 4 been argued that even though the sample allegedly taken had to be divided into two parts and to put each part into separate bottles or containers which are properly cleaned and dried as per Rule 8 of the Kerala Abkari Shops Disposal Rules, 2002, the same was not done. 8. PW-1 has proved the search and seizure. According to him, a sample of 200 ml was drawn from the contraband. The sample was sealed and labelled. The balance quantity of the contraband contained in the can was also sealed and labelled. He affixed his personal seal, and the sample seal was also prepared. PW-2 Excise Inspector, who was also present along with PW-1 corroborated the evidence of PW-1 in all material particulars. According to PW-2, the seal affixed was the personal seal of PW-1, which contains the letters V.S.K. He identified the said seal, which was present on MO-1 even during the stage of examination. Crl.A.No.249 of 2009 5 9. Even though PW-3 and PW-4, who were independent witnesses, turned hostile to the prosecution with regard to the search and seizure, their evidence clearly show that the Excise personnel were present at the toddy shop. Further, they have identified their signatures in Exhibit-P1 seizure mahazar. PW-5 was the Excise Inspector, Mallappally before whom A1 along with the documents and properties were produced by PW-1 and party. Consequently, he registered the crime and occurrence report through Exhibit-P3. The properties along with the accused were produced before court. PW-8 was the Property Clerk of the concerned Magistrate's Court, who produced and proved Exhibit-P9 copy of the property register of the court. He identified MO-1 to MO-3. According to him, the properties were initially produced on 21.08.2004 before the learned Magistrate at his residence. As per direction, again the same were produced at court on 25.08.2004. 6 Crl.A.No.249 of 2009 10. Exhibit-P8 certificate of chemical analysis shows that the seals on the bottle were intact and found tallied with the sample seal provided. There is absolutely nothing to suspect the contents of ExhibitP8. Exhibit-P8 prepared in the usual course of office procedure clearly reveal that sample seal was provided and the seals on the sample were intact and it tallied with the sample seal provided. Exhibit-P6 is the copy of the forwarding note. When seal was provided in the original of the forwarding note, the absence of any seal in its copy marked before the court below as Exhibit-P6, is of no consequence at all. 11. Regarding the non-compliance of Rule 8(2) (c) of the Kerala Abkari Shops Disposal Rules, 2002, it seems that the same is a provision for enabling the detecting officer or the investigating officer to get the second sample examined in case of any loss or damage to the first sample. The said provision does not enable an accused to take up a contention that Crl.A.No.249 of 2009 7 the accused is prejudiced because of the fact that the sample drawn was not divided into two parts. When the sample taken was fit for analysis and the same was analysed properly, Rule 8(2)(c) of the Kerala Abkari Shops Disposal Rules, 2002 will not come to the rescue of the accused. There is absolutely nothing to interfere with the conviction passed by the court below in this matter. The guilt of the appellants under Section 8(2) of the Abkari Act clearly stands proved. The 2[nd] accused has no case that A1 was keeping the said quantity of arrack without his knowledge and consent. Similarly, A2 has no case that he was not the Manager of the said toddy shop. Such a quantity of arrack was seized from the said toddy shop, wherein the 1[st] accused was present. The 2[nd] accused was the licensee of the toddy shop. Matters being so, the conviction passed by the court below under Section 8 (2) of the Abkari Act is not liable to be interfered with. 12. Regarding sentence, the learned counsel Crl.A.No.249 of 2009 8 for the appellants has pointed out that the sentence imposed by the court below is highly excessive when compared to the quantity of contraband involved in this case. There is merit in the said argument. Going by the decision of the Apex Court in Sasikumar and another v. State of Kerala [2012 (4) KLT 867 (SC)], the appellants are entitled to leniency in the question of sentence. Considering the small quantity of contraband involved in this case, this Court is of the view that a sentence of simple imprisonment for three months and to pay a fine of `1,00,000/- (Rupees One Lakh only), in default to undergo a sentence of simple imprisonment for 15 days more will meet the ends of justice in this case. In the result, this Crl.Appeal is allowed in part by maintaining the conviction and by modifying the sentence as follows: Each of the appellants shall undergo the sentence of simple imprisonment for three months Crl.A.No.249 of 2009 9 and to pay a fine of `1,00,000/- (Rupees One Lakh only), in default to undergo a sentence of simple imprisonment for 15 more days. It is made clear that the appellants are entitled to set off, of the period undergone by them in custody in connection with the investigation, inquiry and trial of this case, under Section 428 Cr.P.C. Sd/- B. KEMAL PASHA, JUDGE. DSV/22/6/16 // True Copy // P.A. To Judge