Bhasurangi vs State

K. Ramakrishnan, J.—Accused in S.C. No. 582/2001 on the file of the Additional District and Sessions Court (Adhoc-II), Pathanamthitta, is the appellant herein. The appellant was charge-sheeted by the Excise Inspector of Pathanamthitta in O.R. No. 33/1998 under Section 8(1) read with Section 8(2) of Abkari Act.

The case of the prosecution in nut shell was that, on 23.08.1998 at about 3.00 p.m., the accused was found to be in possession of 11/2 liters of arrack kept in five liter can and found transiting the same along with the road near ''Krishi Bhavan'', Mezhuveli Village, in violation of the Provisions of Abkari Act and thereby she had committed the offence punishable under Section 8(1) read with Section 8(2) of the Kerala Abkari Act.

After investigation final report was filed before the Judicial First Class Magistrate Court-I, Pathanamthitta, and the learned Magistrate has taken cognisance of the case as C.P. No. 19/2001 and thereafter it was committed to the court of Sessions, Pathanamthitta, and the learned Sessions Judge has taken cognisance of the case as S.C. No. 582/2001 and thereafter made over the same to Additional Sessions Court(Adhoc-II), Pathanamthitta, for disposal.

When the appellant appeared before the court below, after hearing the Additional Public Prosecutor and the learned counsel appearing for the appellant, the learned Additional Sessions Judge framed charge under Section 8(1) read with Section 8(2) of Abkari Act, against the accused and the same was read over and explained to her and she pleaded not guilty. In order to prove the case of the prosecution, PWs 1 to 6 were examined and Exts. P1 to P6 and MO 1 were marked on the side of the prosecution. After closure of the prosecution evidence, the accused was questioned under Section 313 of the Code of Criminal Procedure and she denied all the incriminating circumstances brought against her in the prosecution evidence. She had further stated that, she had not committed any offence and no article was seized from her possession and she was taken from her house by the excise officials and falsely implicated in the case. Since the court below felt that, it is not a fit case to acquit the appellant under Section 232 of the Code of Criminal Procedure, she was directed to enter on her defence, but no defence evidence was adduced on her side. After considering the evidence on record, the court below found the appellant guilty under Section 8(1) read with Section 8(2) of the Abkari Act and convicted her thereunder and sentenced her to undergo simple imprisonment for one year and also to pay a fine of 1,00,000/-, in default to undergo simple imprisonment for one year more. Aggrieved by the same, the above appeal has been preferred by the appellant/accused before this court.

Heard the learned counsel for the appellant and leaned Public Prosecutor.

The learned counsel for the appellant submitted that, the evidence of independent witness will go to show that, the seizure was not effected as alleged by the prosecution and they did not support the case of the prosecution and their evidence will support the case of the accused, that she was taken from her house. Further there was delay of 2 days in producing the article and the article was sent to chemical examination after one year and there is discrepancy in the quantity of contraband article examined and the prosecution has not proved that the sample that has been taken from the contraband article was produced without any tampering and the chemical analysis report obtained relates to the sample and that benefit must be given to the accused and that was not done by the court below. So under the circumstances, according to the counsel for the appellant, the lower court was not justified in convicting the appellant for the offence under Section 8(1) read with Section 8(2) of the Abkari Act and she is entitled to get acquittal of the charge levelled against her giving her the benefit of doubt.

On the other hand, the learned Public Prosecutor argued that, after the arrest and seizure, she was produced before the court on the same day and the article was also produced on the same day and as directed by the court, it was produced on 26.08.1998 and that was the 2nd date mentioned in the property list. Further the article was sent from court for examination and there is no possibility of tampering and the quantity that has been taken as 300 ml., is only approximate and not the actual quantity that has been mentioned in the seizure mahazar. So the court below was right in coming to the conclusion that, the accused had committed the offence and no interference is called for in this case.

The case of the prosecution was that, on 23.08.1998 at about 3.00 p.m., PW 2, the Circle Inspector of Excise, Pathanamthitta, was conducting patrol duty along with PW 1 and other officials and when they reached near the ''Krishi Bhavan'', they saw the accused coming with MO 1 cannas in the hand and on seeing the excise party, she tried to go away from that place. So they intercepted her and he examined the cannas in the presence of PWs 3 and 5 and found that it contained 11/2 liters of spirit and when he tasted and smelt the same and he was convinced that it was arrack and thereafter he took sample of about 300 ml., in a 375 ml., bottle and sealed the same and labeled the sample and obtained the signature of the accused and witnesses and he had also signed the same and seized the same as per Ext. P1 mahazar. Thereafter, he came to excise office and handed over the accused, the articles and the mahazar before PW 4 and he prepared Ext. P3 crime and occurrence report as O.R. No. 33/1998 of that Excise Range and produced the accused along with the documents before the magistrate along with the remand report and the property list produced as Ext. P4. The magistrate had initialled the same on the same day and directed to produce the same before the court on the next working day and accordingly it was produced before the court on 26.08.1998 and thereafter the investigation was conducted by PW 6. He sent the forwarding note and on the basis of the forwarding note and requisition, the sample was sent to Chemical Examination Laboratory, Thiruvananthapuram, and Ext. P6 chemical analysis report obtained, which shows that, the sample contained 29.94% by volume of ethyl alcohol.

It is true that, PWs 3 and 5, independent witnesses, though one of them admitted their signature in Ext. P1 denied having witnessed the seizure as such. But they have admitted that, the accused was taken by the excise officials on 23.08.2998, but according to them she was taken from her house and the evidence of those witnesses will go to show that, they are now trying to help the accused. Except giving certain suggestions were given to PW 1 and 2 that, the accused was falsely implicated in the case which was denied by them, nothing was brought out to discredit their evidence regarding the aspect of seizure of MO 1 cannas, from the accused and preparing Ext. P1 mahazar as her arrest from the spot. Further their evidence will go to show that, the article seized was arrack. Further the accused was produced before the court below on 23.08.1998 itself at 8.00 p.m., and she was remanded to custody. It will seen from Ext. P4 property list that, the magistrate had initialled that the articles were also produced before him on 23.08.1998. It is true that there is another date as 26.08.1998, which was explained by PWs 1 and 2 and PW 4 that, it was the subsequent date on which as directed by the magistrate, the articles were produced. Further when she was produced before the court, she had no case that, she has been falsely implicated in the case and she has no complaint against the excise officials as well. So under the circumstances, it can be safely concluded that, the prosecution has proved beyond reasonable doubt that the appellant was arrested with one and half liters, which according to the prosecution, it was arrack in a five litre can.

Further PWs 1 and 2 have identified MO 1 in court, which contained label, which has been affixed with the seal and they explained that, the damages caused to the label on account of the time lapsed for production of MO 1 before the court at the time of trial. That also shows that, the article seized was properly identified by the excise officials before the court as well. So under the circumstances, the lower court was perfectly justified in coming to the conclusion that, the prosecution proved beyond reasonable doubt that the accused was arrested along with MO 1 cannas which contained one and half liters of arrack.

It is true that, there is some discrepancy in the quantity of liquid shown in Ext. P6 chemical analysis report and the quantity taken as sample in Ext. P1 seizure mahazar. It is also seen from the report that, it was sent from court along with the letter dated 25.09.1999 and it was received on 27.09.1999, through excise guard Muhammed Basheer Rawthar. It is an admitted fact that, the article was produced on the same day on which it was seized as per Ext. P1 along with Ext. P4. So, till it was sent to chemical analysis lab through the excise officials, it was in the custody of the court. Further the quantity of sample taken was only mentioned as approximately 300 ml. When it was taken by the excise officials for as sample for the purpose of sending the same for chemical analysis and they have not measured the same accurately. When it was measured in the lab, they will be measuring the same accurately, and that is the reason for the discrepancy in the quantity shown. Except this discrepancy, other discrepancies mentioned in the sample, tallies with the description mentioned regarding the T.R. No., court seal etc. Further in Ext. P6, it was mentioned that the seal of the bottle was in tact and found tallied with the sample seal provided. If really it was tampered in the transit, there is no possibility of the seal being found in tact with the sample seal as mentioned in Ext. P6. So under the circumstances, court below was perfectly justified in coming to the conclusion that, the discrepancy in the quantity shown in Ext. P6 is not fatal, especially when the seal of the bottle was found in tact and found tallied with the sample seal provided. So under the circumstances, the court below was perfectly justified in coming to the conclusion that, the prosecution has proved beyond reasonable doubt that, the accused was found to be in possession of one and half liters of arrack, which is punishable under Section 8(1) read with Section 8(2) of the Abkari Act and rightly convicted her for the offence under Section 8(1) read with Section 8(2) of the Abkari Act and the finding does not call for any interference.

Regarding the sentence is concerned, the counsel for the appellant submitted that, the petitioner is now aged 72 years and she is sick. The court below has rightly come to the conclusion that, considering the nature of offence, the provisions of Probation of Offenders Act is not applicable, as it will have great social impact on the society. However, considering the fact that the appellant is a lady now aged 72 years and suffering from illness and also considering the fact that 1,00,000/- of fine has already been imposed by the court below, which is the minimum provided under the Act, this court feels that, some leniency can be shown in this case and sentencing the accused to undergo simple imprisonment for three months and also to pay a fine of 1,00,000/- in default to undergo simple imprisonment for three months will be sufficient and that will meet the ends of justice. So the sentence of one year simple imprisonment and one year default sentence imposed by the court below are set aside and the same is modified as follows:

The appellant is sentenced to undergo simple imprisonment for three months and also to pay a fine of 1,00,000/-, in default to undergo simple imprisonment for one month more under Section 8(1) read with Section 8(2) of the Abkari Act.

In the result, the appeal is allowed in part and the order of conviction and sentence of fine of 1,00,000/- imposed against the appellant under Section 8(1) read with Section 8(2) of Abkari Act is hereby confirmed. But the substantive sentence of one year imprisonment and default sentence of one year imprisonment are set aside and the same are modified as follows:

The appellant is sentenced to undergo simple imprisonment for three months and further sentenced to pay a fine of 1,00,000/-, in default to undergo simple imprisonment for one month under Section 8(1) read with Section 8(2) of the Abkari Act. The period of detention if any undergone by her is given set off under Section 428 of the Code of Criminal Procedure. Portion of fine amount if any deposited as directed by this court, by the appellant, the same can be given credit to the same. Office is directed to communicate this judgment to the concerned court, immediately.