Rajendran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 29TH DAY OF SEPTEMBER 2015/7TH ASWINA, 1937** ## **CRL.A.No. 1753 of 2005** **--------------------------------** **JUDGMENT DATED 09-09-2005 IN SC 661/2001 OF SPECIAL COURT FOR ABKARI ACT CASES, KOTTARAKKARA CP 227/2000 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - II, KOTTARAKKARA** **..........** ## **APPELLANT(S)/ACCUSED:** **--------------------------------------** **RAJENDRAN, S/O.KOCHU KUNJU, KOCHUVILAYIL VEEDU, KUDAVATTOOR MURI, VELIYAM VILLAGE.** **BY ADV. SRI.B.S.SWATHY KUMAR** ## **RESPONDENT(S)/COMPLAINANT:** **------------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.JIBU P. THOMAS** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29-09-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## K.RAMAKRISHNAN, J. =================== Crl. Appeal No.1753 OF 2005 ======================= Dated this the 29[th] day of September, 2015 ## JUDGMENT The accused in SC No.661/2001 on the file of the Additional Sessions Court for Abkari Cases, Kottarakkara is the appellant herein. The appellant was charge sheeted by the Excise Inspector Chadayamangalam Excise Range in Crime No.33/1998 of that Excise Range under Section 8(1) and 8(2) of the Abkari Act. 2. The case of the prosecution in nutshell was that on 7.10.1998 at about 8.50 am, the accused was found to be in possession of 3 litres of arrack in a 5 litre jerry can and found transitting the same through OdanavattomNedumonkavu Road in front of the house of one Panayil Crl. Appeal No.1753 OF 2005 2 Kuttan Pillai, at Kudavatoor in violation of the provision of the Abkari Act and thereby he had committed the offence punishable under Section 8(1) and 8(2) of the Abkari Act. 3. After investigation, final report was filed before the Judicial First Class Magistrate Court-II Kottarakkara, where it was taken on file a CP No.227/2000. The learned Magistrate committed the case to the Sessions Court, Kollam under Section 209 of the Code of Criminal Procedure (hereinafter referred to as the Code). After committal, the case was taken on file as SC No.661/2001 on the file of the Sessions Court Kollam. The learned Sessions Judge originally made over the case to the Assistant Sessions Court, Kottarakkara for disposal. Thereafter, it was withdrawn from that court and then made over to Additional Sessions Court for Abkari Cases Kottarakkara for disposal. 4. When the accused appeared before the court below, after hearing both sides, charge under Section 8 (1) and 8(2) of the Abkari Act was framed and same was Crl. Appeal No.1753 OF 2005 3 read over and explained to him and he pleaded not guilty. In order to prove the case of the prosecution, PWs1 to 4 were examined and Exts.P1 to P5 and MO1 were marked on their side. After closure of the prosecution evidence, the accused was questioned under Section 313 of the Code, and he denied all the incriminating circumstances brought against him in the prosecution evidence. He had further stated that he had not committed any offence and no article was seized from his possession and he has been falsely implicated in the case. Since the evidence in the case did not warrant an acquittal under Section 232 of the Code, the accused was called upon to enter on his defence. But no defence evidence was adduced on his side. After considering the evidence on record, the court below found the appellant guilty under Section 8(1) and (2) of the Abkari Act and convicted him thereunder and sentenced him to undergo simple imprisonment for two years and also to pay a fine of Rs.1,00,000/-, in default to undergo simple imprisonment for six months. Set off was Crl. Appeal No.1753 OF 2005 4 allowed for a period of detention already undergone by him under Section 428 of the Code. Aggrieved by the same, the present appeal has been preferred by the appellant/accused before the court below. 5. Heard Sri. Ashish Mohan, counsel representing Sri. Swathikumar counsel for the appellant and Sri. Jibu P. Thomas learned Public Prosecutor appearing for the State. 6. The counsel for the appellant submitted that there are contradictions in the evidence of PWs1 and 2 regarding the manner in which the sample was taken. Further neither PW1 nor PW2 had mentioned as to who had taken the sample and nothing was mentioned about the same in Ext.P1 seizure mahazar as well. Further the location of place of occurrence was not properly described in Ext.P1 mahazar and it is not clear from which side the accused had said to have come with the cannas in the mahazar. Further there was delay in producing the article which has not been explained. The nature of seal used and the forwarding note was not marked in the case. So Crl. Appeal No.1753 OF 2005 5 under the circumstances, it cannot be said that the same article said to have been seized was produced in court and chemical analysis report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. He had also argued that there was delay in completing the investigation. PW2 was not even questioned by the investigating officer and there was no seal seen on the material objects produced in court. So it cannot be said that the material object has been properly identified in court. He had relied on the decisions reported in **Gopalan v State of Kerala** [2012 KHC 812], **Lalitha v State of Kerala** [2012 (1) KLT 515], **Nalinakshan v State of Kerala** [2012 (4) KHC 464] and **Surendran and Another v State of Kerala** [2013 (3) KHC 780] in support of his case. 7. On the other hand the learned Public Prosecutor submitted that the articles were produced before the court on the same date and it is only after verification it Crl. Appeal No.1753 OF 2005 6 was taken and the sample was sent from court and chemical analysis report will go to show that the seal and the sample seal were found intact on the bottle. No question was put to any of the witnesses regarding the delay in completing the investigation and no prejudice has been established as well. So according to him, the court below was perfectly justified in convicting the appellant for the offence alleged. 8. The case of the prosecution as emerged from the prosecution witnesses was as follows:- On 7.10.1998 at about 8.50 am while PW1 the Excise Inspector along with PW2 the Preventive Officer were doing patrol duty and when they reached from Odanavatom-Nedumonkavu Road from east-west and when they reached in front of the house of Panayil Kuttan Pillai at Kadavattoor, they saw the accused coming in front of them and on seeing the Excise party, he tried to go away from that place, PW1 intercepted him and verified MO1 cannas in his hand and found that it Crl. Appeal No.1753 OF 2005 7 contained 3 litres of some liquid which on verification he was satisfied that it was arrack and he convinced the same to the witnesses as well. Thereafter he had taken 300 ml. liquid from that liquid in 375 ml. bottle and sealed the same and he had sealed the cannas also in the same fashion and seized the sample as well as the cannas as per Ext.P2 mahazar in the presence of PW4 and another. He arrested the accused and prepared Ext.P1 arrest memo and gave intimation to his father. Thereafter he came to Excise Office along with the accused and the contraband articles seized and registered Ext.P3 occurrence report as Crime No.33/1998 of Chadayamangalam Excise Range against the accused under Section 8(1) and (2) of the Abkari Act. He was produced before the court along with remand report on the same day and he prepared Ext.P4 property list and produced the contraband articles before court on the same date. He had sent a forwarding note on the basis of which the sample was sent from court to chemical Crl. Appeal No.1753 OF 2005 8 examiners laboratory and Ext.P5 report obtained which shows that the sample contained 28.41% by volume of ethyl alcohol. The investigation in this case was conducted by PW3. He questioned the witnesses and recorded their statement. He collected the chemical analysis report and completed the investigation and submitted final report. 9. PW4 is the independent witnesses to the seizure he had denied having seen the seizure and even denied the signature in Ext.P2 mahazar. He had admitted that he knew the accused and he is the neighbour of the accused. So it is clear from this that he was now trying to help the accused and that was the reason why he was not supporting the case of the prosecution. 10. Then the only evidence available is that of PWs1 and 2 the detecting officer and the preventive officer who accompanied him to prove the seizure and arrest of the accused. PW1 had categorically stated that he along with PW2 were doing patrol duty on that day and when they reached in front of the house of one Kuttan Crl. Appeal No.1753 OF 2005 9 Pillai, they saw the accused coming from the opposite to them and he was found perplexed and tried to go away from that place. So they stopped him and he had verified MO1 cannas in his hand and satisfied that it contained 3 litres of arrack. He had also stated that 300 ml. liquid from that cannas was taken in a 375 ml. bottle as sample and the same was sealed, it is personal seal since the accused told that he was not having any seal. He had sealed the bottle as well as the cannas and then seized the same as per Ext.P2 mahazar. He arrested the accused and came to Excise office and registered the case. PW2 had corroborated the evidence of PW1 on this aspect. It is true that there is some discrepancy in the evidence of PWs 1 and 2 regarding the question as to who had put the seal. According to PW1, the seal was put by one Excise guard, Radhakrishnan, whereas according to PW2 it was put by one Excise guard Ranjith but that alone is not sufficient to disbelieve their case on this aspect. The incident occurred in the year 1998 and they were Crl. Appeal No.1753 OF 2005 10 examined before the court only in the year 2001 after a lapse of three years. So such discrepancies in the evidence alone is not sufficient to disbelieve their case. So under the circumstances, court below was perfectly justified in believing the evidence of PWs1 and 2 and coming to the conclusion that prosecution was able to establish beyond reasonable doubt and MO1 cannas with 3 litres of liquid said to be arrack was seized from the possession of the accused and seizure and arrest are proper. 11. It is seen from Ext.P4 property list that it was produced before court on 7.10.1998, but it was seen entered in the register on 12.10.1998. It is seen from the seal of the court also that it reached the court on 7.10.1998. Further all the documents viz, occurrence report, seizure mahazar etc. also reached the court on the same day viz. 7.10.1998 along with the remand report when the accused was produced in court. So report regarding the seizure had reached the court on the very Crl. Appeal No.1753 OF 2005 11 same day. Further it was verified and taken and if there is any defect in the sample or the seal that would have been mentioned in the property list by the property clerk or the Magistrate which has not been done in this case. 12. Further in all the decisions relied on by the learned counsel for the appellant viz. **Gopalan V State of Kerala [** 2012 KHC 812], **Surendran and Another v State of Kerala** [2013 (3) KHC 718] and **Raju v State of Kerala** [2012 KHC 877], it was mentioned in those cases that non-production of specimen seal used for sealing along with the contraband articles before the court is fatal and they must prove the delay in producing the article as well. But in all those cases, there was delay in producing the article before court and even production of documents were also with some delay and there was no explanation forthcoming from the side of the prosecution witnesses regarding this aspects and there is no evidence adduced as to who was in possession of the articles till it was produced in court, so as to satisfy the court about the Crl. Appeal No.1753 OF 2005 12 genuineness of the articles produced before the court. So it was under those circumstances this court has come to the conclusion that non-production of the specimen impression of the seal used for sealing the article create doubt regarding the genuineness of the articles produced in court and in such circumstances, it cannot be said that the prosecution has proved the case beyond reasonable doubt and that benefit must be given to the accused. 13. In this case that was not the case. Here the articles were produced in the court without delay infact on the same date. All the contemporaneous documents prepared at the time of seizure were also reached the court on the same day. So under the circumstances, the dictum laid on the above decisions are not applicable to the facts of the case, similarly the dictum laid down in the decision reported in **Nalinakshan v State of Kerala** [2012 (4) KHC 464] is also not applicable to the facts of the case. In that case there was no spot sample taken and the case of the prosecution was that sample was Crl. Appeal No.1753 OF 2005 13 taken from court. But there was no evidence adduced as who had taken the sample and in such circumstances it has been held that in the absence of evidence, it cannot be said that the chemical analysis report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused and that benefit was given to the accused. 14. Similarly the dictum laid down in **Lalitha's Case** (supra) [2012 (I) KLT 515] is also not applicable to the facts of the case. In those cases none of the witnesses had stated that who had taken sample, but here PW1 had categorically stated that the sample was taken by him and seal was affixed by the Excise guard. So that dictum is also not applicable to the facts of the case. The dictum laid down in the decision reported in **Surendran and Another v State of Kerala,** it has been held that long delay in filing the final report will amount to cause prejudice to the accused. In that case, Crl. Appeal No.1753 OF 2005 14 investigation was conducted by an Head Constable who is not an Abkari Officer. Further even after obtaining the chemical analysis report there was delay in producing the final report. In this case the chemical analysis report was seen received in court only during December 1999 and the final report in this case was filed on November, 2000. There was no question put to any of these witnesses regarding the delay and consequential prejudice if any caused to the accused on account of the same. So under the circumstances, it cannot be said that merely because there was delay in producing the final report alone will entitle an acquittal of the accused unless prejudice caused on account of the delay has been established on the side of the defence, that has not been done in this case. 15. It is true that PW2 had stated that he was not questioned by the investigating officer. PW3 the investigating officer also stated that his statement was not recorded. But it may be mentioned here that though after the amendment final complaint filed by the Excise Crl. Appeal No.1753 OF 2005 15 Department will be deemed to be a Police report for the purpose of Section 173(2) of the Code, there was no practice of producing the statement of the witnesses recorded under Section 161 prevailing with the Excise Department earlier. So only if the witnesses has stated more than what was stated in the seizure mahazar their statement will be separately recorded and produced. That was the practice prevailing earlier and only now when the courts have insisted that when it become a police report under Section 173 (2) of the Code, the statement of witnesses will have to be recorded and the copies of the same have to be furnished, that practice is being followed by them. Further it is seen from Ext.P2 mahazar that PW2 had signed as a witness in that document and that document reached the court on the same day. Under the circumstances, merely because he was not questioned by the investigating officer alone is not sufficient to come to the conclusion that he was not present at the place of occurrence as claimed by the defence counsel. Crl. Appeal No.1753 OF 2005 16 16. It is true that the seal was not seen on MO1 when it was marked in court, it is seen from the judgment of the court below that it was brought in a damaged condition, so the court below rightly observed in the judgment that due to lapse of time, the possibility of damage being caused to the seal and the seal being lost due to lapse of time cannot be ruled out and that cannot be a ground for acquitting the accused. So under the circumstances, and in view of the discussions made, the court below was perfectly justified in coming to the conclusion that the prosecution has proved beyond reasonable doubt that the accused was found to be in possession of arrack which is an offence punishable under Section 8(1) and 8(2) of the Abkari Act and rightly convicted him for the said offence and the finding does not call for any interference. 17. As regards the sentence is concerned, court below had sentenced him to undergo simple imprisonment for two years and also to pay a fine of Crl. Appeal No.1753 OF 2005 17 Rs.1,00,000/-, in default to undergo simple imprisonment for six months more. The court below had rightly declined to provide the benefit of probation of offenders Act in this case considering the nature of offence. Further as regards the Abkari offence are concerned, persons committing the offence are doing the same, knowing the consequences and ignoring the impact of their act on innocent people who are consuming the same. So under the circumstances, persons who are found guilty of such offences must be dealt with severely. But at the same time, while imposing sentence, the quantity seized and antecedents of the accused, age of the accused etc. can be taken note by this court. The article seized is only 3 litres. He was aged 46 years at the time of commission of offence and nearly 14 years has lapsed. So considering this aspects this court feels that retaining the fine and default sentence and reducing the substantive sentence to nine months simple imprisonment will be sufficient so that will meet the ends of justice. So the substantive sentence Crl. Appeal No.1753 OF 2005 18 of two years imprisonment by the court below is set aside and the same is modified as follows:- The appellant is sentenced to undergo simple imprisonment for nine months and also to pay a fine of Rs.1,00,000/- in default to undergo simple imprisonment for six months. Set off is allowed for a period of detention already undergone by him under Section 428 of the Code. In the result the appeal is allowed in part. The order of conviction under Section 8(1) read with Section 8(2) of the Abkri Act and sentence of fine of Rs.1,00,000/- with six months imprisonment imposed by the court below are hereby confirmed. The substantive sentence of two years simple imprisonment imposed by the court below is set aside and the same is modified as follows: The appellant is sentenced to undergo simple imprisonment for nine months and also to pay a fine of Rs.1,00,000/-, in default to undergo simple imprisonment for six months. Set off is allowed for a period of Crl. Appeal No.1753 OF 2005 19 detention already undergone by him in this case. Office is directed to communicate this order to the concerned court immediately. Sd/K.RAMAKRISHNAN, JUDGE SKV