RARICHAN MATHEW v. STATE OF KERALA

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **WEDNESDAY, THE 5TH DAY OF DECEMBER 2012/14TH AGRAHAYANA 1934** **Crl.Rev.Pet.No. 265 of 2003 ( ) ------------------------------CRA.314/2000 of ADDL.DISTRICT COURT,KOTTAYAM CC.677/1998 of J.M.F.C.,PALA** **REVISION PETITIONER(S)/APPELLANT/ACCSED::** **----------------------------------------** **RARICHAN MATHEW, S/O. MATHEW, MADAPPALLIL HOUSE, BHARANANGANAM, PALA.** **BY ADV. SRI.K.GOPALAKRISHNA KURUP (SR.)** **RESPONDENT(S)/RESPONDENT/COMPLAINANT::** **---------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF, KERALA ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. ROY THOMAS** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **JJJ** ## **N.K. BALAKRISHNAN, J.** ------------------------------------------ Crl. R.P. No: 265 of 2003 -----------------------------------------Dated this the 5[th] day of December, 2012 ## **O R D E R** The petitioner was concurrently held guilty of the offence under section 55(a) of Abkari Act and was convicted and sentenced thereunder. 2. The case of the prosecution is that on 24.12.1996 at about 1.00 p.m., while PWs 1 and 3 were on patrol duty they got reliable information that the accused was selling arrack from his house. A search memorandum was prepared and sent to the Court. In the presence of the witnesses the house occupied by the accused was searched. They could find a bottle of 750 ml capacity, containing in it 700 ml of illicit arrack. That was seized as per Ext.P2 search list. Thereafter, when the accused was questioned he was stated to have given a disclosure statement to the effect that he had kept spirit in empty tar barrel and **Crl.R.P. No: 265/2003** **-2-** accordingly, as led by the accused, the Investigating Officer went to that place. They found a can of a capacity of 35 litres inside the tar barrel. That can was found to contain 20 litres of spirit. Samples were taken from 700 ml which was the arrack seized earlier and also from the spirit seized pursuant to the disclosure statement mentioned above. The accused was arrested. Crime report was prepared and registered. After conducting investigation, charge sheet was laid. 3. PWs 1 to 3 were examined and Exhibits P1 to P4 were marked. M.O.1- the plastic can containing spirit and M.O.2- the bottle containing the residue of arrack were marked. The learned Magistrate accepted the prosecution version and held the petitioner guilty and convicted and sentenced him as mentioned above. The learned Sessions Judge, after a detailed discussion and re-appreciation of the evidence, confirmed the conviction and sentence passed **Crl.R.P. No: 265/2003** **-3-** against the petitioner. 4. Smt. Nima Jacob, the learned counsel for the revision petitioner has argued at length contending that there is no document to show that the spirit allegedly seized by the Police was kept in the property belonging to the accused. No document was produced regarding the same. There is contradiction in the evidence given by PWs 1 and 3 regarding the actual seizure, preparation of the mahazar, sampling etc. It is further argued that there was delay in production of the contraband articles before Court. It is also argued that though the prosecution contends that search memo was sent to the court, that search memo was not marked before court. Hence, it is argued that there is no satisfactory evidence to prove that the petitioner was in conscious possession of the spirit kept in the can inside the tar barrel and also with regard to the possession of 700 ml of illicit arrack. **Crl.R.P. No: 265/2003** **-4-** 5. The learned Public Prosecutor submits that the two courts below have analysed the evidence in the correct perspective and there is no reason to hold otherwise. Ext.P1 mahazar shows the detailed description of the seizure of 700 ml of illicit arrack. The fact that a sample of 180ml was taken from out of it, is also specifically mentioned. Further, the fact that 20 litres of spirit, kept in a can as referred to above, was also specifically stated in Ext.P1 mahazar. From that spirit 375 ml was taken as sample. It was stated that the samples were sealed then and there. 6. The learned counsel for the revision petitioner would submit that the properties were produced before court on '28.1.1997' as has been mentioned in paragraph 10 of the judgment of the trial court. But it is true that the property list was not actually marked before the court ## **Crl.R.P. No: 265/2003** **-5-** below. On going through the records it is seen that the property reached the court on 28.12.1996 itself and not on 28.1.1997, as observed by the learned Magistrate. The property list shows that the samples were in a sealed condition. It is true that the detection was on 24.12.1996. The occurrence report reached the court on 26.12.1996. Hence, it cannot be said that there is unreasonable delay in production of the property before court. 7. Ext.P4 – the report of the Chemical Examiner shows that item no.1 – the sample taken from 700 ml of arrack contained 37.81 % by volume of Ethyl Alcohol. sample no.2 – the sample taken from the spirit, contained 93.64 % by volume of Ethyl Alcohol. Therefore it can be seen that the petitioner was found in possession of 700 ml of arrack and also 20 litres of spirit as alleged by the prosecution. **Crl.R.P. No: 265/2003** **-6-** 8. It is also argued by the learned counsel for the revision petitioner that the major part of the investigation was conducted by the officer who detected the case and so serious prejudice was caused to the accused and so benefit of doubt should have been given to the accused. That contention was raised before the appellate court also. No question pertaining to the alleged prejudice caused to the accused was specifically put by the defence before the court below. Though the house, where from 700 ml of illicit arrack was seized as per record, belonged to the mother of the accused; when it was seized in the presence of the accused there was no case for the accused that 700 ml of liquor mentioned above was kept by his mother. The further fact that 20 litres of spirit was seized based on the disclosure statement given by the accused is another circumstance to hold that the plea raised by the defence that there was no conscious possession is untenable. **Crl.R.P. No: 265/2003** **-7-** 9. Relying on earlier decisions it was held by this court that unless prejudice is shown to have caused to the accused, there is nothing wrong in convicting an accused even if the detecting officer himself has conducted the search, prepared the search list, registered the F.I.R. and completed the investigation. (See the decision in **Biju @ Sasi v. State of Kerala 2011 (4) KLJ 76** .) The courts below have analysed the evidence in the correct perspective and found that the prosecution could prove the charge levelled against the accused. Hence, conviction is to be confirmed. 10. The learned counsel for the revision petitioner submits that leniency may be shown to the accused since no other case was reported against him and that the petitioner is leading a decent and dignified life. Considering all the aspects I find that the sentence is to be modified to a certain extent. The trial court sentenced the petitioner to **-8-** ## **Crl.R.P. No: 265/2003** simple imprisonment for six months and to pay Rs.5.000/as fine. But as the law then stood, the minimum fine that should have been imposed was Rs.25,000/-. 11. In the result, this Criminal Revision Petition is disposed of as stated below: The conviction is confirmed. In supersession of the sentence awarded by the court below, the petitioner is sentenced to simple imprisonment for one month and to pay Rs.25,000/- as fine and in default to simple imprisonment for three months. Sd/N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj