Purushothaman @ KUNJUNJU v. State of Kerala and The Sub Inspector of Police, Mundakkayam Police Station

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** ## **THURSDAY, THE 15TH DAY OF DECEMBER 2016/24TH AGRAHAYANA, 1938** ## **CRL.A.No. 599 of 2009** **----------------------SC 144/2008 OF ADDL.DISTRICT & SESSIONS COURT (ADHOC)-II, KOTTAYAM --------------** **APPELLANT/ACCUSED:** **-----------------** **PURUSHOTHAMAN @ KUNJUNJU, AGED 55, S/O. ACHUTHAN, PARUTHAPPARA HOUSE, KOOTTICKAL VILLAGE, ELAMKADU KARA.** **BY ADVS.SRI.C.K.VIDYASAGAR SRI.P.CHANDY JOSEPH** **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **2. THE SUB INSPECTOR OF POLICE, MUNDAKKAYAM POLICE STATION.** **BY GOVT PLEADER SRI ALEX M THOMBRA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** ## **B. KEMAL PASHA, J.** ................................................................ Crl. Appeal No. 599 of 2009 ............................................................... Dated this the 15[th] day of December, 2016 ## **J U D G M E N T** The appellant is the accused in S.C.No.144/08 of the Additional Sessions Court(Adhoc-II), Kottayam, who stands convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for three years and to pay a fine of ₹1 lakh, in default, to undergo rigorous imprisonment for six more months. 2. The prosecution case is that on 25.08.2005 at 2 p.m., the accused was found engaged in brewing arrack at his property in Koottickal Village and that he was found in possession of around 16½ litres of arrack and around 200 litres of wash. 3. The offence was detected by PW1 Circle Crl. Appeal No. 599 of 2009 -: 2 :- Inspector of Police, Kanjirappally and party. He seized the contraband through Ext.P1 mahazar. Three samples of 375 ml each were drawn from the arrack and three other samples of 375 ml each were drawn from the wash. The remaining quantity of wash was destroyed. The implements made use of by the accused for brewing the arrack were also seized. Crime No.277/05 of the Mundakkayam Police Station was registered against the accused through Ext.P2 FIR. The accused was placed under arrest. Initially, the investigation was conducted by PW5 Sub Inspector of Police, Mundakkayam, who was also present along with PW1 at the time of search and seizure. He has produced the contraband and the samples before court. Forwarding Note was furnished. PW6 continued the investigation and filed final report against the accused, on getting Ext.P5 certificate of chemical analysis, which shows that the sample of arrack contained 34.65, 34.65 and 34.18% by volume of ethyl alcohol. It further shows that the samples Crl. Appeal No. 599 of 2009 -: 3 :- drawn from the wash contained 9.27, 9.03and 8.80% by volume of ethyl alcohol. 4. On the side of the prosecution, PW1 to PW8 were examined, and Exts.P1 to P5 and Ext.X1 were marked. MOs.1 to 10 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 him thereunder and sentenced him as aforesaid. 5. Heard the learned counsel for the appellant and the learned Senior Public Prosecutor. 6. The learned counsel for the appellant has argued that the Forwarding Note has not been marked in the case and therefore, there is nothing to show that the subject matter in Ext.P5 certificate of chemical analysis are the samples allegedly drawn from the contraband involved. It has been alternately argued that the accused had undergone imprisonment in this case for the period from 25.08.2005 to 24.10.2005 and therefore, any further Crl. Appeal No. 599 of 2009 -: 4 :- incarceration is not required by taking into consideration the small quantity of contraband involved in this case. 7. PW1 was the Circle Inspector of Police, Kanjirappally from whose jurisdiction the accused was placed under arrest and the contraband was seized. Samples were drawn. It is evident from Ext.P4 property list that the contraband and the samples were produced before court on 25.08.2005 itself. There is no delay in the production of samples before the court below. Even though the learned counsel for the appellant has argued that the Forwarding Note was not produced in this case, the case records show that it contained the Forwarding Note. The want of Forwarding Note was not under challenge before the court below. Ext.P5 certificate of chemical analysis clearly shows that the seals on the packets and bottles were in tact and it tallied with the sample seal provided. There is absolutely nothing to suspect the contents of Ext.P5. 8. Apart from the above, the evidence of PW1 is Crl. Appeal No. 599 of 2009 -: 5 :- fully corroborated by the evidence of PW5 Sub Inspector of Police, who was present along with PW1 at the time of the search and seizure. PW7 property clerk of the Judicial First Class Magistrate's Court-I, Kanjirappally has proved the extract of the property register marked as Ext.X1 which shows that the properties were received by him on 26.08.2005. The property wherein the accused was found engaged in brewing the arrack has been proved as the property of the accused, through the examination of PW4 Village Officer. 9. On going through the entire evidence in this case, it seems that the prosecution has clearly proved beyond doubt the guilt of the accused under Section 8(2) of the Abkari Act. There is absolutely nothing to interfere with the conviction entered by the court below. Regarding the sentence, this Court is of the view that the sentence imposed by the court below is on the higher side. By relying on the decision of the Apex Court in _**Sasikumar v. State of**_ Crl. Appeal No. 599 of 2009 -: 6 :- _**Kerala** [2012 (4) KLT 867 (SC)]_ , this Court is of the view that the appellant is entitled to leniency in the question of sentence. It seems that the accused had undergone detention in this case for the period from 25.08.2005 to 24.10.2005, for at least two months. Considering the meagre quantity of contraband involved in this case, this Court is of the view that the substantive sentence of imprisonment imposed on the appellant can be reduced to the aforesaid period and therefore, any further detention is not required. Of course, the appellant is liable to pay the fine amount of ₹1,00,000/-, in default, he shall undergo simple imprisonment for 15 days more. In the result, this Criminal Appeal is allowed in part by maintaining the conviction and modifying the sentence as follows: The substantive sentence of imprisonment imposed by the court below is limited to the period of detention undergone by the appellant in this case from 25.08.2005 to Crl. Appeal No. 599 of 2009 -: 7 :- 24.10.2005. The appellant shall pay a fine of ₹1,00,000/-, in default, he shall undergo simple imprisonment for 15 days more. **Sd/- B. KEMAL PASHA, JUDGE.** ul/- // true copy // P.S. to Judge.