VARGHESE V.CHERIAN v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA MONDAY, THE 5TH DAY OF AUGUST 2013/14TH SRAVANA, 1935 CRL.A.No. 1326 of 2004 ( ) ------------------------------------- AGAINST THE ORDER/JUDGMENT IN SC 589/2002 of ADDL. SESSIONS COURT (ADHOC-I), ALAPPUZHA DATED 13-07-2004 APPELLANT/ACCUSED: ------------------------------- VARGHESE V.CHERIAN, S/O.PAUL CHERIAN, AGED 48 YEARS, CHIRAMEL PUTHEN VEEDU, VISWAVARSSERIKKARA MURI, KURATTISSERI VILLAGE, CHENGANNUR. BY ADVS.SRI.GRASHIOUS KURIAKOSE SRI.B.PRAMOD RESPONDENT/COMPLAINANT: ---------------------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. SREEJITH V.S. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DSV/- ## **B. KEMAL PASHA, J** **------------------------------------** Crl. Appeal No. 1326 of 2004 **-----------------------------------** Dated this the 5[th ] day of August, 2013 ## **J U D G M E N T** The accused in S.C.No.589 of 2002 of the Additional Sessions Court(Adhoc-I), Alappuzha, who stands convicted under Section 55(g) of the Abkari Act and sentenced to undergo simple imprisonment for three years and to pay a fine of Rs.1 lakh, in default, to undergo simple imprisonment for one more year, has come up in appeal. 2. The prosecution case is that, on 18.11.2000 by about 7 p.m., while PW4, Excise Inspector of Chengannur Excise Range and party were on patrol duty, they could see the appellant carrying a 35 litre can on his shoulder and walking through the road. He was intercepted and the contents of the can was verified. It was revealed that the can was containing 35 litres of wash. The appellant was placed under arrest and the contraband was seized. A Crl. Appeal 1326 of 2004 -:2:- sample of 500 ml was drawn. The balance wash was destroyed. The sample and the can were seized through Ext.P1 mahazar. They went to the excise office with the appellant and the material objects and registered C.R.No.89 of 2000 through Ext.P3 occurrence report. On the next day itself, the appellant was produced before court along with the material objects. Requisition was filed and the sample was sent for chemical analysis. On getting Ext.P5 certificate of chemical analysis, the complaint was filed. 3. On the side of the prosecution, PWs.1 to 4 were examined and Exts.P1 to P5 were marked. MO1 was identified. On the side of the appellant, DW1 was examined. The court below found the appellant guilty of the offence punishable under Section 55(g) of the Abkari Act, convicted him thereunder and sentenced him as aforesaid. 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. Learned counsel for the appellant has mainly argued that there is no sufficient evidence to connect the appellant with the crime. It is further argued that PW4 had violated the mandatory Crl. Appeal 1326 of 2004 -:3:- provisions contained under Section 67-B of the Abkari Act by destroying the balance contraband after taking the sample. It is further argued that, in fact, there is no reason to believe that the contraband was destroyed, as Ext.P3 reveals that the contraband contained in the can was also sealed. 5. The learned Public Prosecutor has invited my attention to the concerned provisions contained in the excise manual by which it has been stated that in the case of wash, the balance quantity after drawing the samples can be destroyed in the presence of the accused. It is true that as per Section 67-B of the Abkari Act, the seizing officer shall produce the contraband before the authorized officer who is authorized by the Government through a notification. My attention was invited to the notification and has been pointed out that a notification has been duly published in the Gazette by authorizing persons of and above the rank of an Assistant Excise Commissioner of excise, as authorized officer. On production of the contraband, the authorized officer has to pass an order of confiscation under sub-section 2 of Section 67-B. As per sub-section(3) when making an Crl. Appeal 1326 of 2004 -:4:- order of confiscation under sub-section(2) the authorized officer may also order that such of the properties to which the order of confiscation relates, which in his opinion cannot be preserved or are not fit for human consumption, be destroyed. When a notification is there, destruction could not have been done by overlooking the provisions contained under Section 67-B of the Abkari Act. 6. The learned Public Prosecutor has pointed out that the destruction of such items like wash etc. are to be made at the earliest as those items are perishable. It has been further pointed out that, at the most, the destruction of the contraband in this case by overlooking the provisions of S.67-B of the Abkari Act can only be a mere irregularity which would not have normally vitiated the trial or caused any prejudice to the appellant. My attention has been invited to the decision of this Court in _**Kittunny v. State of Kerala (1981 KLT S.N. 69 Case No.124)**_ wherein it was held: “A reading of the provisions of the Act shows that the Act does not provide any authority to the seizing officer, who has not been authorized as contemplated Crl. Appeal 1326 of 2004 -:5:- under S.67-B of the Act, to destroy any part of the wash or other articles. S.67B requires the seizing officer to produce the materials before an authorized officer who can order confiscation. Of course, having confiscated the material, if it is of no value, it may be open to the authorized officer to destroy the material. But the seizing officer, who is not an officer authorized under S.67-B of the Act cannot destroy any part of the materials seized. Such destruction amounts to an irregularity. However, it is not shown before me that the destruction of the bulk of the wash has in any way prejudiced the defence. In such circumstances, the irregularity committed by the seizing officer cannot affect the legality of the proceedings or the trial or the conviction.” 7. Admittedly, PW4 is not an authorized officer under Section 67-B of the Abkari Act. When he could not have destroyed any part of the contraband, such destruction amounts to an irregularity. However, the destruction of the bulk quantity of wash done by PW4 has not in any way Crl. Appeal 1326 of 2004 -:6:- prejudiced the defence. It could be harmful to the prosecution, only when it is shown that the destruction had prejudiced the appellant. 8. The learned counsel for the appellant has pointed out that there is prejudice in this case as far as the destruction of the wash was concerned. According to the learned counsel for the appellant, when the entire quantity of wash, after taking the sample from it, was sealed, it ought to have been produced before court in the normal course. Further, it has been pointed out that Ext.P3 occurrence report normally shows that the balance quantity of wash was not destroyed, whereas it was kept sealed in the can. In such case, according to the learned counsel for the appellant, the said can containing wash in a sealed state should have been produced before court. The evidence of PWs.1 and 4 reveal that the wash was destroyed after drawing the sample. As rightly pointed out by the learned counsel for the appellant, Ext.P3 occurrence report contains a statement that the wash in the can was also sealed. Ext.P4 is the copy of the property list produced before court Crl. Appeal 1326 of 2004 -:7:- by PW4. The learned counsel for the appellant has pointed out that after the entry in item No.1, the said entry has been subsequently corrected by incorporating the term 'empty' in it. It seems that Ext.P4 was returned by the court when it was presented for the first time with a note that “the description of item No.1 is not specific; hence may be returned.” originally item No.1 was “about 35 litres, black plastic can - one”. It was returned only because of the fact that the said entry was not specific in the sense that it might have given an impression that the can contained wash, whereas there was no wash at all in it. What was meant by PW4 by making entry as item No.1 in the above terms might have been that the can was of 35 litres capacity. When that was not specific and clear, Ext.P4 was returned and subsequently the term 'empty' was also scene incorporated in Ext.P4 after the term 'plastic can'. After making the correction it was again resubmitted. When such a correction was carried out and it was resubmitted, I do not think that the appellant was put to any prejudice at all in the matter. As per the decision in **Kittuni** ( _supra),_ the said act of PW4 in Crl. Appeal 1326 of 2004 -:8:- destroying the balance quantity of wash could only be an irregularity which did not vitiate the trial or did not cause any prejudice to the appellant. Matters being so, the destruction of the wash is not at all fatal to the prosecution. 9. Learned counsel for the appellant has fairly conceded that he is not harping upon the defence version regarding the implication of the appellant at the instance of the owner of the toddy shop. 10. On going through the evidence of PW4, it seems that he has proved the prosecution case. A sample of 500 ml was drawn. The balance quantity of wash was destroyed on the spot in the presence of the appellant. He identified the can as MO1. It seems that the can was produced along with sample itself. Ext.P3 occurrence report was registered. On the next day itself the appellant was produced before court with remand report. The properties were produced through a property list, the copy of which is Ext.P4. The requisition for chemical analysis was filed. Ext.P5 is the report of chemical analysis, which shows that the sample contained 7.44% per volume of ethyl alcohol. PW1 Crl. Appeal 1326 of 2004 -:9:- Preventive Officer who was also present along with PW4 has fully corroborated the versions of PW4. It is true that as usual PW2 and PW3 who were two independent occurrence witnesses cited by the prosecution, have turned hostile to the prosecution, even though they had admitted their signature in Ext.P1 seizure mahazar as well as in Ext.P2 arrest memo. 11. From the discussions made above, it has come out that there is no illegality or irregularity in the conviction entered by the court below. Therefore, the conviction is not liable to be interfered with. Regarding the sentence, the learned counsel for the appellant has pointed out that the appellant has not been involved in any other case. 12. The learned counsel for the appellant seeks maximum leniency in the question of sentence. In _**Sasikumar and another v. State of Kerala(2012 KHC 4713)(SC)**_ , an identical situation was dealt with by the Apex Court. In the said decision, it was held in paragraph 11 as follows: _“We would like to further observe that from_ Crl. Appeal 1326 of 2004 ## -:10:- _the facts of the case it is evident that the appellants and the other accused in this case are not the real men behind the nefarious trade of illicit intoxicants in the State. From the quantity seized from the possession of the accused and the manner in which it was being carried, it is evident that the three accused were only small time operators in the illicit trade of arrack and though visible, they constitute the weakest link in the chain of illicit trade in arrack. In those circumstances, we think a further reduction of the sentence would be quite in order. We, accordingly, reduce the sentence of imprisonment from 18 months, as awarded by the High Court, to one year and further reduce the sentence in default of payment of fine from six months to fifteen days.”_ It was held in paragraph 13 as follows: _“Before parting with the record of the case, we would like to point out that S.8(2) of the Abkari Act does not fix any upper limit for the fine but lays down that the fine shall not be less than Rs.1,00,000/-. Since the minimum amount of fine prescribed by the law is kept_ Crl. Appeal 1326 of 2004 -:11:- _so high, the courts naturally give the default sentence of imprisonment for a substantially longer period. As noted above, the trial court has given the default sentence of one year which was reduced by the High Court to six months. We may note that in cases where poor people like the appellants who may only be the carrier of the arrack or who may be trying to eke out a living from the illegal trade are caught committing the offence, they are hardly in position to pay the fine of Rs.1,00,000/- and for them the default sentence becomes an additional period of incarceration. In a way, fixing the minimum fine at such a high amount, regardless of the countless possible variables in the commission of the offence under S.8(1), leads to discrimination in favour of those convicts who have sufficient means to pay the fine and, thus, avoid any default imprisonment and the small fries for whom the default sentence would invariably mean an additional sentence of imprisonment. To our mind, it is desirable to leave the Court free in exercise of judicial discretion in the matter of imposition of fine.”_ Crl. Appeal 1326 of 2004 -:12:- 13. Considering the facts and circumstances of this case, I am of view that the sentence of simple imprisonment for a term of three months, and a fine of Rs. l lakh, in default, simple imprisonment for one more month, will meet the ends of justice in this case. In the result, this appeal is allowed in part by modifying the sentence as follows: The appellant is sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.1 lakh, in default, to undergo simple imprisonment for one more month. It is made clear that the appellant is entitled to set off, of the period already undergone by him in detention in connection with the investigation, inquiry, and trial of this case, under Section 428 Cr.P.C. Sd/- B. KEMAL PASHA, JUDGE ul/- [True copy] P.S. to Judge