Venu @ Venukuttan Nair v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931** **CRL.A.No. 726 of 2003()** **----------------------------------** **SC.151/2001 of ADDL. SESSIONS COURT (ADHOC - I), THODUPUZHA** **....................** **APPELLANT(S): 1ST ACCUSED** **-------------------------** **VENU @ VENUKUTTAN NAIR, AGED 41 YEARS, S/O. BHASKARAPILLAI, PUTHUPARAMBIL HOUSE, BLOCK NO. 647, BALAGRAM KARA, KARUNAPURAM VILLAGE** **BY ADV.MR.PAULY MATHEW MURICKEN** **RESPONDENT(S): COMPLAINANT** **--------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, REPRESENTING SUB INSPECTOR OF POLICE, NEDUMKANDAM.** **BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/07/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ORDER ON CRL.MP. NO.4804/2003 IN CRA. NO.726/2003** ## **DISMISSED** **10/07/2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE** ## **TSS** **M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 726 OF 2003 = = = = = = = = = = = = = = = Dated this the 10[th] day of July, 2009.** ## **J U D G M E N T** This appeal is preferred against the conviction and sentence passed in S.C.151/01 of the Addl. Sessions Judge, Adhoc-I, Thodupuzha. The two accused stood trial under S.55(a) of the Abkari Act for which A2 was acquitted and A1 was sentenced to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.1,00,000/- and in default to undergo simple imprisonment for a period of one month. It is against that decision the accused has come up in appeal. 2. The points that arise for determination in this appeal are; (1) Whether the materials available are sufficient to convict the accused u/s 55(a) of the Abkari Act? (2) Is the sentence proper? **Crl.A. 726 OF 2003** -2- ## **Points 1 and 2:** 3. Heard the learned counsel for the appellant as well as the learned Prosecutor. It is the case of the prosecution that on 15.11.98 at about 7.30 p.m. both the accused in the case were found inside the kitchen of a hotel by name Himalaya Hotel at Balagram. It was found that they were pouring a liquid from one Can to another and on seeing the police the 2[nd] accused left the place and thereafter A1 was apprehended, arrested and the liquid was seized which on smell and taste was found to be illicit arrack. 4. The learned counsel for the appellant would contend before me that the independent witnesses had turned hostile and the evidence of official witness is unsatisfactory and the delay in sending the samples before the Court has prejudiced the accused and therefore the accused is entitled to an acquittal. 5. So far as the turning of the independent witnesses as hostile, it is a regular practice and as has been observed by this Court as early as in the decision reported in _**Sivaraman v. State of Kerala (1981 KLT S.N. Case No.17 page 9)**_ that independent witnesses are turning hostile for the reasons **Crl.A. 726 OF 2003** -3- best known to them and it was further held that the Court is competent to arrive at a finding on the basis of the evidence tendered by the official witnesses. But the Court added a caution that the evidence of official witness should be meticulously scrutinized and scanned and the Court should be satisfied about its intrinsic reliability. 6. In this case PW3 is the Circle Inspector of Police who had conducted the search. According to him he got a reliable information at 1 p.m. and after preparing the search memo and authorizing the police constable to hand it over to the Court he proceeds to the place and at 7.30 p.m. when they enter the Himalaya hotel they found both the accused in the kitchen pouring a liquid from one Can to the other Can and that the 2[nd] accused left the place and could not be apprehended even though an effort was made to apprehend him. Thereafter the first accused was apprehended and on search it was found that the liquid is illicit arrack and samples were taken in four bottles, sealed and remaining was also sampled and sealed. It is suggested to this witness that the present accused had deposed against him namely PW3 in another case which has ended in conviction and therefore on ## **Crl.A. 726 OF 2003** -4- account of the fact that he is foisting a false case against him. Except for the mere suggestion which is denied by PW3 no other materials are forthcoming to establish that factor. It can also be seen that the thondi articles were produced before the Court on 19.11.98 and it is very specifically described that sample bottles were tied with white cloth and sealed. The sample sealed is also included in the property list. It is true that there is a delay of 3 to 4 days in producing the sample before the Court. I am conscious of the fact that if the delay in producing the sample before the Court has caused any prejudice, the benefit should go to the accused. A mere delay is not sufficient to draw an adverse inference. The chemical examiner's report also would convincingly establish that the seal on the sample was in tact and it tallied with the sample supplied. Therefore I do not find any prejudice that has been caused to the accused in this case on account of the delay of three of four days. 7. It is true that sample was sent for chemical analysis after some time. It had not caused any prejudice to the accused's case as the sample in the sealed condition was in the proper custody of the Court. Learned counsel had also **Crl.A. 726 OF 2003** -5- argued before me that since the search memo has reached the Court only on the next day it also arises suspicion but it has to be stated that official acts are done by persons one cannot simply throw the sanctity on a mere suspicion. Every officer is expected to discharge his function in an official manner and that is why the Law of Evidence attaches importance to the same. So that will not also destroy the case of the prosecution. 8. Learned counsel then would contend that S.55(a) of the Abkari Act will not be attracted for the reason that S.55(a) deals with export, import, transit or possession and since it is not transporting it will not be attracted. He is correct for the reason that he has relied on a decision of a Division Bench of this Court reported in _**2007 (1) KLT 845 Mohanan v. State of Kerala**_ where the Division Bench of this Court held that S.55(a) is applicable only when persons illegally imports or transport liquor or in possession of liquor while illegally transporting. Therefore a conviction u/s 55(a) cannot be done. But it has to be borne in mind when possession is established S.58 will be attracted and in S.58 the imperative necessity is of a conscious possession. When a person is in ## **Crl.A. 726 OF 2003** -6- possession of a liquid there is a presumption u/s 64 of the Abkari Act and it is for that person to explain away the possession. The police officials had seen the illicit liquor being poured into from one Can to another which indicates that they were consciously doing the act which indicates their conscious possession. Therefore I feel conviction can be had u/s 58 of the Abkari Act. Since it has not caused any prejudice conviction can be had u/s 58 of the Act. _**(2007 (1) KLN SN 42 case No.58(Shaji v. State of Kerala**_ ). 9. Now turning to the question of sentence the learned counsel very persuasively submits before me with some materials that the accused is undergoing some psychiatric treatment and the Court should show maximum leniency on him. I had the opportunity to peruse the photocopy of the cards which is one pertaining to the Mental health Department of the Colleges. Taking into consideration and also taking into consideration the confidence in the submissions made by the learned counsel I am inclined to show some leniency so that unnecessary hardship shall not affect the health of the accused in this case. So I am imposing a punishment of one month u/s 58 of the Abkari Act with a fine of Rs.1,00,000/- and in default ## **Crl.A. 726 OF 2003** -7- to undergo one month's imprisonment more. 10. In the result the appeal is disposed of as follows. (1) The conviction u/s 55(a) is set aside. (2) The accused is found guilty u/s 58 of the Abkari Act and he is sentenced to undergo simple imprisonment for a period of one month u/s 58 of the Abkari Act and to pay a fine of Rs.1,00,000/- and on default he has to undergo simple imprisonment for one month. (4) He is entitled to set off u/s 428 Cr.P.C. during the custody period and the lower Court shall execute the sentence. ## **M.N. KRISHNAN, JUDGE.** ul/- ## **Crl.A. 726 OF 2003** -8- **M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 726 OF 2003 = = = = = = = = = = =** **==> picture [136 x 10] intentionally omitted <==** **10[th] July, 2009**