Babu vs State of Kerala

K. Ramakrishnan, J.—Accused in S.C. No. 139/02 on the file of Additional Sessions Court, (Adhoc-II), Thodupuzha is the appellant herein.

Appellant was charge sheeted by the Sub Inspector of Police, Idukki in Crime No. 244/2000 of Idukki Police Station under Section 8(1) and (2) and Section 55(b) and (g) of Abkari Act.

The case of the prosecution in nutshell was that on 25.10.2000 at about 2.00 p.m, the appellant was found engaged in distilling arrack using the materials required for manufacture of arrack and utensils from House No. IX/312 of Vazhathoppu Panchayath and found to be in possession of arrack in violation of the provisions of Abkari Act and thereby, he had committed the offence punishable under Section 8(1) and (2) and Section 55(b) and (g) of Abkari Act.

After investigation, final report was filed before the Judicial First Class Magistrate Court, Idukki where it was taken on file as C.P. No. 17/2001. The learned magistrate committed the case to Court of Sessions, Thodupuzha where it was taken on file as S.C. No. 139/02 and thereafter, it was originally made over to Assistant Sessions Court, Thodupuzha for disposal.

When the appellant appeared before the Assistant Sessions Court, Thodupuzha, after hearing the Additional Public Prosecutor and Counsel for the defence, the Assistant Sessions Judge framed charge against the appellant under Section 8(1) and (2) and 55(b) and (g) of Abkari Act and the same was read over and explained to him and he pleaded not guilty. Thereafter, the case was withdrawn and made over to Additional Sessions Court, (Adhoc-II), Thodupuzha for disposal by the Sessions Judge.

In order to prove the case of the prosecution, PWs 1 to 5 were examined and Ext P1 to 11, MO1 to MO9 series were marked on the side of the prosecution. After closure of the prosecution evidence, the appellant was questioned under Section 313 of Code of Criminal Procedure 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 he is innocent of the same and in fact, he was taken from Palace Hotel at Idukki and thereafter, taken to Police Station and he has been falsely implicated in the case. No article was seized from his possession as well. Since evidence in this case did not warrant an acquittal under Section 232 of Code of Criminal Procedure, the appellant was called upon to enter on his defence and DW1 was examined on his side. After considering the evidence on record, the court below found the appellant guilty under Section 8(1) and (2) and 55(b) and (g) of Abkari Act and convicted him there under and sentenced him to undergo rigorous imprisonment for one year and also to pay a fine of Rs. 1,00,000/- in default to undergo simple imprisonment for two months under Section 8(1) and (2) of Abkari Act and further sentenced to undergo rigorous imprisonment for one year and also to pay a fine of Rs. 1,00,000/- in default to undergo simple imprisonment for two months under Section 55(b) of Abkari Act and further sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,00,000/- in default to undergo simple imprisonment for two months under Section 55(g) of Abkari Act and directed the substantive sentences to run concurrently. Set off was allowed for the period of detention already undergone by him in the case. Aggrieved by the same, the present appeal has been filed by the appellant-accused before the court below.

Heard the Counsel for the appellant and the Public Prosecutor.

The Counsel for the appellant submitted that the seizure as such is illegal. It has not been done in accordance with law. Though it was mentioned in the seizure mahazar that search memorandum was sent to court before proceeding to the place as contemplated under Section 102 of Code of Criminal Procedure which is applicable under Section 36 of the Abkari Act as well in respect of seizure to be done from a building under that Act, no such search memorandum had reached in the court and Ext. P11 copy of the search memorandum said to have been sent was produced from the case diary file at the time of trial which could not have been relied on by the court below. In the absence of search memorandum sent to court prior to proceeding to the place where the search was intended to be conducted is in violation of Section 36 of Abkari Act read with Section 102 of Code of Criminal Procedure and that vitiate the search itself and no conviction can be based on such illegal search. Further, he had also argued that there was a delay of nearly seven days in producing the articles before court and there was no explanation forthcoming regarding the same as well. Once the delay has not been explained, then, it cannot be said that the prosecution has proved beyond reasonable doubt that the article which was alleged to have been seized from the possession of the appellant were the same articles that were produced in court and the Chemical Analysis Report relates to such article so as to convict the appellant for the offence alleged. Further, the ownership of the house from where the alleged articles were seized has not been established. Appellant is not the owner of the house and no document has been produced by the prosecution to prove that he is in exclusive possession of the house so as to convict him for the offence alleged. So, under the circumstances, according to the learned Counsel, the prosecution has failed to prove the case against the appellant beyond reasonable doubt and the appellant is entitled to get acquittal of the charge levelled against him giving him the benefit of doubt.

On the other hand, the Public Prosecutor argued that the prosecution has proved the alleged distillation of arrack by the appellant and it was at the time when he was engaged in distillation that he was arrested along with the contraband articles. The independent witnesses have admitted their signatures in the documents prepared by the detecting officer and also taking of the appellant with them. But, they had a different case that he was taken from a Hotel and as required by the police, they signed the documents and they also stated that they knew the appellant but, they did not protest the appellant being taken by them. So, they are now trying to help the appellant. Further, the investigating officer had stated that he was in possession of the article till they were produced in court and they identified the articles from court which was not tampered and tallying with the descriptions in the manner in which it was seized as described in the seizure mahazar. So, under the circumstances, prosecution has proved beyond reasonable doubt that the appellant had committed the above said offences and the court below was perfectly justified in convicting the appellant for the said offence as well and no interference is called for.

The points that arise for consideration are:

1) Whether the court below was justified in convicting the appellant for the offence under Section 8(1) and (2) and Section 55(b) and (g) of the Abkari Act?

2) If so, the sentence imposed is proper and legal?

Point No-1:

The case of the prosecution as emerged from the prosecution witnesses was as follows:

On 25.10.2000, while PW5 along with PW3 and others were doing patrol duty, they got information that appellant was engaged in sale of arrack from his house with No. IX/312 of Vazhathoppu Panchayath and immediately PW5 had prepared the original of Ext. P11 search memorandum and sent the same to court through a police constable and thereafter, proceeded with the house and conducted the search in the presence of PWs 1 and 2 and at that time, the appellant was found engaged in distillation of arrack from the kitchen of that house. Thereafter, he had examined the contents in MO2 Aluminum vessel and satisfied that it was wash, a material used for manufacture of arrack. Thereafter, he had examined the product of the distillation kept in MO1 and MO4 and he was satisfied that it was arrack. Thereafter, he had taken two samples of 300 ml. each from the liquid found in MO1 and MO4 and sealed the same and affixed labels containing the signatures of the witnesses and himself and the appellant and numbered them as S1 to S4. He had taken two samples of 700 ml of wash in two 750 ml bottles as mentioned above and put S5 and S6 marks on them. He had put No. 1 for the cannas having 2 = litres and No. 2 for the other cannas which was having capacity of 12 litres and found arrack in it and he had sealed the same and labeled the same as well as mentioned above. He destroyed the remaining wash and thereafter, seized MOS 1 to 6 as per Ext. P1 search list in the presence of PWs 1 and 2 and seized the samples and other articles as per Ext. P3 seizure mahazar. He arrested the appellant and prepared Ext. P2 arrest memorandum.

Thereafter, he came to police station and prepared Ext. P6 report and registered Ext. P6(a) First Information Report as Crime No. 244/2000 against the appellant under Section 8(1) and (2) and 55(b) and (g) of Abkari Act. At the time when he arrested the appellant, he prepared Ext. P7 Inspection Memo and gave Ext. P8 arrest intimation. He prepared Ext. P9 property list and produced the property before the court along with Ext. P10 forwarding note. On the basis of the request made by PW5, the samples were sent from court to Chemical analysis and Ext. P5 Chemical Analysis report obtained. The investigation in this case was conducted by PW4, the additional Sub Inspector of Police. He questioned the witnesses and recorded the statements and he completed the investigation and submitted final report before court.

PWs 1 and 2 are the independent witnesses to the seizure. Though they admitted their signature in Ext. P1 and P3, they have denied having seen the actual seizure. According to them, when they were taking food, the appellant was taken from the Hotel stating that some arrack was seized from a compound which according to them belong to the appellant. So, it is clear from that they are now trying to help the appellant and that was the reason why they are not supporting the case of the prosecution, especially when they have stated that they know the appellant very well.

The evidence of PW5 will go to show that on getting intimation regarding the sale of arrack from the house of the appellant, he sent the original of Ext. P11 search memorandum to court and thereafter, went to the house and found the appellant engaged in distillation of arrack from the kitchen of the house. Thereafter, after complying with the formalities of taking sample, sealing etc., he had seized MOS 1 to 6 the cannases in which the arrack was collected and other implements and vessels used for distillation of arrack and wash, a material used for preparing the arrack and also the samples. He prepared search list and seizure mahazer.

Thereafter, he arrested the appellant, came to the office and registered the crime. The evidence of PW5 was corroborated by the evidence of PW3-the police constable who accompanied him. Though they were cross examined at length, nothing was brought out to discredit the evidence regarding this aspect. DW1 was examined on the side of the appellant to prove the false implication of the appellant and he was taken from the hotel. But, he had admitted that he had not made any complaint to the authorities and he did not accompany the appellant to the police station to question the act of the police.

So, under the circumstances, court below was perfectly justified in rejecting the contention of the appellant that he has been falsely implicated in the case.

It is true that original of Ext. P11 search memorandum did not reach the court. But, it may be mentioned here that PW5 had categorically stated that it was prepared and sent through a police constable and the preparation of such search memorandum was mentioned in the seizure mahazar Ext. P3 which was prepared from the place of occurrence itself. Further, Section 36 of the Abkari Act only says that as far as possible, the procedure for search as contemplated under Code of Criminal Procedure has to be followed. So, what is required is only a substantial compliance and not the strict compliance and as such merely because the original of Ext. P11 did not reach the court or it could not be marked is not a ground to disbelieve the case of the prosecution and invalidate the search conducted by PW5 if it is otherwise established.

Further, it is true that Ext. P4 possession certificate was marked through PW4-the investigating officer which was issued by a Village Officer who could not be examined as he was no more to prove that the appellant was in possession of the house where the contraband article was seized. It may be mentioned here that the exclusive possession or ownership of the house will be relevant in a case where the articles were seized not from the direct possession of the appellant or at the time when he was not available in that place. If he has been arrested from the spot at the time when he was engaged in distillation of arrack, then, that itself is sufficient to prove that he was in possession of the house at the time when the crime was detected and it was he who had committed the offence and in such cases, non proving of ownership of the house or exclusive possession of the house etc., is not fatal to the case of the prosecution. The dictum relied on by the Counsel for the appellant Sambasivan Nair Vs. State of Kerala is not applicable to the facts of this case. It was a case where the article was seized from a shed which was situated in the property where apart from the house of the accused, other houses were also situated and there is nothing to show that who was in actual possession of the shed from where the article was seized. In such circumstances, this court has observed that without proving that the shed exclusively belongs to and in the control of the accused, it cannot be said that prosecution has proved conscious possession of the article and he cannot be convicted for the offence. That was not the case here. So, under the circumstances and also from the nature of evidence adduced on the side of the prosecution, there is nothing to disbelieve the evidence of PWs 5 and 3 regarding the search and seizure of the contraband articles and arrest of the appellant from the spot when he was engaged in illicit distillation of arrack, court below was perfectly justified in coming to the conclusion that the prosecution has proved beyond reasonable doubt that the search and seizure of the articles and arrest of the appellant are proper and legal and there is nothing to disbelieve the same.

It is true that though the article was seized on 25.10.2000, the articles were produced before court only on 31.10.2000. PW5 had categorically stated that he was in possession of the articles till it was produced before court. Further, they have identified the article as article seized and the seal, label etc., affixed on the article seized namely., MOS 1 to 6 were identified by them when they examined in court as well. Further, in the decision reported in Ravi Vs. State of Kerala [2011 (3) KLT 353], Division Bench this court has held that it is not necessary that the article should be forthwith sent to the court. But, it should not be unnecessarily delayed and if the delay is accounted to the satisfaction of the court, court can condone the delay and rely on the evidence of the prosecution if the court is satisfied that it was in the proper custody and it was produced before court without any possibility of tampering. In this case, the evidence of PW5 will go to show that he was in possession of the article till it was produced before court and there was no tampering of the articles as the descriptions of samples and articles seized mentioned in Ext. P3 mahazar tallied with the articles that were produced before court and identified through PW5 as well. So, under the circumstances, the court below was perfectly justified in coming to the conclusion that the delay is not fatal and the articles were produced from proper custody namely., PW5 and there was no possibility of tampering and it was produced in tamper proof condition and the Chemical Analysis Report Ext. P5 relates to that sample which shows that the article seized was wash and arrack. So, under the circumstances, court below was perfectly justified in coming to the conclusion that the prosecution has proved beyond reasonable doubt that the appellant had committed the offence punishable under Section 8(1) and (2) and 55(b) and (g) of Abkari Act and rightly convicted him for the said offence and I don''t find any reason to interfere with the same. The point is answered accordingly.

Point No. 2

The Counsel for the appellant submitted that the sentence imposed is harsh.

The lower court sentenced the appellant to undergo rigorous imprisonment for one year and also to pay a fine of Rs. 1,00,000/- in default to undergo simple imprisonment for two months under Section 8(1) and (2) of Abkari Act and further sentenced to undergo rigorous imprisonment for one year and also to pay a fine of Rs. 1,00,000/- in default to undergo simple imprisonment for two months under Section 55(b) of Abkari Act and further sentenced to undergo rigorous imprisonment for one year and also to pay a fine of Rs. 1,00,000/- in default to undergo simple imprisonment for two months under Section 55(g) of Abkari Act and directed the substantive sentences to run concurrently. Set off was also allowed for the period of detention undergone by him in this case.

Considering the nature of offence and its impact on the society, court below was perfectly justified in not invoking the provisions of Probation of Offenders Act in this case.

Further, persons who are committing offences under the Abkari Act are committing the acts knowing the consequences of the same and when they are committing offence under the Act, they are only concerned for their personal monetary gain ignoring the safety of the society as well. They are also unconcerned about the consequences of their act and impact of their act on the youngsters and the general public. It is settled law that in such cases when the court found that the accused guilty or the person committed the offence, they must be dealt with severely and in such cases, showing unwanted leniency while awarding sentence will only give a wrong message to the society. Considering the circumstances, the court below had shown maximum leniency in imposing the sentence as well. I don''t find any reason to interfere with the same. The point is answered accordingly.

In the result, the appeal fails and the same is hereby dismissed. The order of conviction and sentence passed by the court below against the appellant under Section 8(1) and (2) and Section 55(b) and (g) of Abkari Act are hereby confirmed.

Office is directed to communicate this judgment to the court below and send the back records at the earliest.