Sadasivan v. State

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.D.RAJAN TUESDAY, THE 1ST DAY OF MARCH 2016/11TH PHALGUNA, 1937 CRL.A.No. 1560 of 2004 (C) --------------------------- AGAINST THE JUDGMENT IN SC 894/2000 of ADDL.SESSN.COURT (ADHOC-II) KASARAGODE DATED 24-08-2004 AGAINST THE JUDGMENT IN CP 92/2000 of J.M.F.C.,KASARAGOD DATED 06-082000 APPELLANT/ACCUSED: ------------------- SADASIVAN, AGED 32, S/O. KUNHIRAMAN, SANTHINAGAR, KARADUKA VILLAGE. BY ADV. SRI.I.V.PRAMOD RESPONDENT/COMPLAINANT: ------------------------ STATE - REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PP DHANESH MATHEW MANJOORAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-032016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.D.RAJAN, J ......................................... Crl.A.No.1560 of 2004 ....................................... Dated 1[st] March, 2016 ## JUDGMENT This appeal is preferred by the accused against the conviction and sentence under Section 55(a) of the Abkari Act in S.C.894 of 2000 of the additional Sessions Judge adhoc II, Kasargod. The charge against the appellant is that on 29.1.2000 at 16.50 hours, he was found in possession of 196 packets of arrack each containing 100 ml at Shanthi Nagar in Karaduka Village by the S.I of Police, Adhur. He was arrested and the contraband articles were seized, reaching at the police station, a crime was registered. After completing investigation, he laid charge before Judicial First Class Magistrate, Kasargod. Subsequently, the case was committed to Sessions Court, Kasargod. From there it was forwarded to the Additional Sessions Judge. 2. During trial, prosecution examined Pws 1 to 3 and marked Ext.P1 to P7 as documentary evidence. Mos 1 to 3 were admitted as material objects. The Cra 1560/2004 2 incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. The learned additional Sessions Judge convicted the accused and sentenced to rigorous imprisonment for one year and fine of Rs.1 lakh and in default, rigorous imprisonment for two months. Being aggrieved by that, he preferred this appeal. 3. The main contention advanced by the learned counsel appearing for the appellant is that there is a delay of 9 days in producing the seized articles before court which will prejudice the accused. Therefore, there is no evidence that sample was properly taken and it was kept in proper custody. 4. The occurrence was deposed by PW3, the detecting officer. His evidence shows that on 29.1.2000, he was conducting patrol duty within his jurisdiction and on reaching at Shanthi Nagar, appellant was found carrying a plastic sack on his head. On seeing the police party, he abandoned the plastic sack and ran away. PW3 detained him and examined the plastic sack, detected 196 Cra 1560/2004 3 packets of arrack each containing 100 ml. The arrack was seized after preparing Ext.P1 seizure mahazar. He also prepared Ext.P2 scene mahazar. Appellant was arrested and Ext.P3 is the arrest memo. The contraband articles were seized after taking sample. Six packets were opened and collected in two bottles each containing 375 ml. The sample bottles were sealed and label was affixed. Reaching at the police station, he registered a crime, Ext.P4 is the F.I.R. The contraband articles were produced before court on 7.2.2000. Ext.P5 is the property list and Ext.P6 is the forwarding note. The samples were examined in the Chemical Laboratory. Ext.P7 is the chemical analysis report. PW1 identified MO1, MO2 and MO3 before court. After completing investigation, PW3 laid charge before court. PW3 was cross examined by the defence counsel. A close scrutiny of the evidence of PW3 shows that the incident which happened at the place of occurrence were properly narrated in Ext.P1 seizure mahazar. The various steps taken by him at the time of preparation of mahazar and Cra 1560/2004 4 sampling were fully narrated in the mahazar and no reason to discard his oral testimony and documentary evidence prepared by him. 5. The independent witness PW1 admitted his signature in Ext.P1 seizure mahazar. He admitted that he signed in Ext.P1 on 29.1.2000 at Shanthi Nagar. PW2 also admitted his signature in Ext.P2. Analysing the evidence of these two independent witnesses, it is true that they signed in Ext.P1 and P2. Therefore it is presumed that the documents were properly prepared as and when it was seized. The only dispute is with regard to delay in production of the seized article before court. The learned counsel submitted that there is possibility that properties would have been tampered with on the basis of the delay. The contraband articles seized has to be kept in safe custody of the S.I. If the officer thinks that it is to be produced before court, he has to produce that without unnecessary delay before the Magistrate. The S.I deposited the articles in his office and affixed the seal on it in the Police Station and subsequently produced Cra 1560/2004 5 those articles before the Magistrate Court also. This shows that he complied the statutory formalities as per law and there is no reason to disbelieve the oral testimony before court. While cross examination of PW3, no questions were asked to him discrediting the sealing, labelling and packing. In the chemical examination result also, it is reported that the seal was in tact and tallied with the forwarding seal produced in the chemical examiner's lab. 6. In **Ravi V. State of Kerala** (2011(3) KLT 353) it was held as follows. “The prosecution, in a case of this nature can succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the Chemical Examiner by change of hands in a tamper-proof condition. (Vide **State of Rajasthan V. Daulath Ram** (AIR 1980 SC 1314) and **Valsala V. State of Kerala** (1993(2) KLT 550 (SC). No conviction can be entered against the accused in a prosecution as the present one unless it is proved that the samples Cra 1560/2004 6 which was analysed in the Chemical Examiner's laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused (See Sathi V. State of Kerala (2007(1) KLT SN 57(C.No.82) and Sasidharan v. State of Kerala (2007(1) KLT 720). There is no satisfactory link evidence to show that it was the same bottles seized from the appellant which eventually found their way into the hands of the Chemical Examiner and that there was no meddling or tampering with the bottles while they were in the custody of PW4. Hence, the result of Ext.P7 Chemical Analysis cannot be applied against the appellant”. 7. Therefore analysing the evidence of PW3 and also Ext.P7, it is clear that the contraband articles had reached before court in a tamper proof condition and it was forwarded to the chemical examiner's lab in a fool proof manner which was reported in Ext.P7 report itself. Therefore a presumption under Section 293 of the Code can be drawn in Ext.P7. There is satisfactory link of evidence. It was the same bottle which was seized and Cra 1560/2004 7 sealed from the appellant and it was produced before the chemical examiner's lab and obtained Ext.P7 report. The trial court considered this aspect and convicted the appellant. When arrack is seized from a person, it is clear that accused committed an offence punishable under Section 8 of the Abkari Act. According to Section 8, no person shall manufacture, import, export without permit transit, possess, store, distribute bottle or sell arrack in any form. This court in **Gopan V. State of Kerala (** 2007 (3) KLT 443) held that mere possession of arrack in any form without any authority would only attract Section 8 of Abkari Act. Therefore the conviction under Section 55(a) of the Abkari Act is to be set aside. The learned counsel for the appellant submitted that appellant is a coolie and the sole bread winner of his family and if severe punishment is imposed on him, it will cause irreparable injury to his family. The quantity seized from his possession is 19.6 litres and no previous antecedents is reported against him. 8. In the result, the conviction under Section 55(a) Cra 1560/2004 8 of the Abkari Act is set aside and appellant is convicted under Section 8 of the Abkari Act and sentenced to imprisonment for two months and fine of Rs.1 lakh, in default of payment of fine, simple imprisonment for one month (Relied **Sasi Kumar V. State of Kerala** (2012(4) KLT 867)). The period of detention undergone during investigation, trial or inquiry shall be entitled to set off against the terms of imprisonment. This appeal is allowed in part. ## **P.D.RAJAN, JUDGE** lgk