Lukose vs State of Kerala

V. Ramkumar, J.—In this appeal preferred from the Central Prison, Thiruvananthapuram, the appellant who was the sole accused in S.C. No. 375/2002 on the file of the Addl. Sessions Court (Abkari), Kottarakkara, for offences punishable u/s 55(a) and 55(i) of the Abkari Act, challenges the conviction entered and the sentence passed against him u/s 55(a) of the said Act.

The case of the prosecution is that on 3.6.2000 at about 8 p.m. in the rubber plantation of one Baby of Vadakkumkara veedu, Palamukku, the accused was found in possession of 4 litres of illicit arrack in a black jerry can having a capacity of 5 litres and that the accused has thereby committed offences punishable under Sections 55(a) and 55(i) of the Abkari Act.

On the accused pleading not guilty to the charge framed against him by the court below for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 5 witnesses as PWs.1 to 5 and got marked 5 documents as Exts.P1 to P5 and 2 material objects as M.Os.1 and 2.

After the close of the prosecution evidence, the accused was questioned u/s 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He had the following to submit before court. He is a headload worker by profession. While he was unloading ration goods for the ration dealer who was a member of the Congress political party, a quarrel ensued between them. He was subsequently caught by the police from his house at midnight and falsely implicated in the case.

The court below did not consider it a fit case for recording an order of acquittal u/s 232 Cr.P.C. The accused was, therefore, called upon to enter on his defence and to adduce any evidence which he might have in support thereof. The accused did not adduce any defence evidence.

The learned Addl. Sessions Judge as per judgment dt.19.7.2006 found the appellant not guilty of the offence punishable u/s 55(i) of the Abkari Act, but found him guilty of the offence punishable u/s 55(a) of the Act and sentenced him to undergo simple imprisonment for two years and to pay a fine of Rs. 1 lakh and, on default to pay the fine, to undergo simple imprisonment for 6 months more. It is the said judgment which is assailed in this appeal.

I heard Adv. Sri E.S. Ashraf, the learned Counsel who defended the appellant on State Brief, and Adv. Sri K.S. Sivakumar, the learned Public Prosecutor who defended the State.

The only point which arises for consideration in this appeal is as to whether the conviction entered and the sentence passed against the appellant are sustainable or not?

THE POINT

P.W.1 is the police constable who accompanied the detecting officer viz. P.W.2. P.W.2 is the Sub Inspector of Police, Yeroor Police Station. He detected the offence. PWs.3 to 5 are the independent witnesses to the arrest, search and seizure. All of them turned hostile to the prosecution. After the conclusion of investigation it was PW.2 himself who laid the charge.

The learned Counsel appearing for the appellant made the following submissions before me in support of his fervent plea for acquittal of the appellant:

The offence was allegedly detected at 8 o'' clock in the night of 3.6.2000 from a rubber plantation. PWs.1 and 2 claim to have seen the accused in the light provided by torch light. Both of them did not have any previous acquaintance with the accused who had allegedly made good his escape at the time of detection. He was arrested only subsequently i.e. on 5.6.2000. PW.2 has confessed that he did not get the accused identified by CW.3 who is PW.5. There is, therefore, no acceptable evidence to show that it was the accused standing in the dock who was detected by PW.1 and 2 in the night of 3.6.2000. Similarly, the material objects seized in this case on 3.6.2000 were produced before court only on 22.6.2000. As per Section 36 of the Abkari Act the provisions in the Cr.P.C. pertaining to search and seizure are applicable to prosecution under the Abkari Act also. As per Section 102(3) Cr.P.C., the properties should have been produced before court forthwith. That has not been done. In the light of the decisions in Dominic v. State of Kerala 1989 (1) KLT 601 and Muraleedharan v. S.I. of Police ILR 2007 Ker 26 delay in sending the material objects to the court should be looked upon with suspicion. The magistrate was not justified in sending the sample bottle even without a forwarding note or requisition. There is also no acceptable evidence to show that the sample bottle which was produced by PW.2 before court was the one which ultimately reached the hands of the chemical examiner. The conviction entered and the sentence passed overlooking these aspects cannot be sustained.

I am afraid that I cannot agree with the above submissions. The testimony of PWs.1 and 2 which corroborate with each other on material particulars, convincingly shows that while PW.2 along with his police party including PW.1 was proceeding in their jeep on patrol duty, they got credible information from a place called Palamukku to the effect that the accused was vending illicit arrack. On proceeding further they came across the accused in the vicinity of a rubber plantation with M.O.1 can having a capacity of 5 litres and MO.2 glass tumbler. The accused was seen in a perplexed and nervous condition. On interrogation and on testing the contents of the jerry can carried by the accused through smell and taste, PW.2 was convinced that the accused was selling illicit arrack. PW.2 drew a sample containing 350 ml. from the bulk quantity. The sample bottle was separately packed and sealed. The accused was thereafter arrested and the jerry can containing the bulk quantity and the sample bottle were seized under Ext.P1 mahazar. PW.2 then took the accused as well as the material objects and seizure documents to the police station from where he registered the above crime. It was PW.2 himself who conducted the investigation and laid the final charge before court. During the course of investigation he produced the material objects including the sealed sample bottle before court on 22.6.2000 as evidenced by Ext.P3 property list.

It is true that the prosecution has not produced any forwarding note or requisition seeking the forwarding of the contraband liquor to the chemical examiner for analysis. But then the right-hand side column of Ext.P3 property list itself contains a request to send the sample to the chemical examiner for analysis and to get a report from the chemical examiner. That is sufficient.

No doubt, the properties were produced before court only on 22.6.2000. But that is not fatal to the prosecution in the light of the credible testimony of PW.2 to the effect that until production before court they were in his safe custody. If PW.2 could be trusted with for the arrest, search and seizure, there is no reason why PW.2 cannot be believed when he says that until production of the properties before court, they were in his safe custody.

It is true that the sample bottle was forwarded to the chemical examiner only as per the covering letter of the magistrate dt. 6.7.2000 as revealed by Ext.P4 report of the chemical examiner. It is also true that there are no contemporaneous records maintained before the committal magistrate to show that the person in charge of the thondy section had despatched the sample bottle to the chemical examiner''s laboratory for analysis. But then the sample bottle was received in court in a sealed condition. Ext.P4 report of chemical analysis recites that a sample bottle containing 350 ml. of a liquid allegedly arrack seized in Crime No. 107/2000 of Yeroor Police Station was received along with the covering letter dt. 6.7.2000 of the magistrate. This shows that the sample bottle which was produced in this case was forwarded to the chemical examiner by the magistrate. The seal on the sample as well as the specimen seal sent separately to the chemical examiner were found to tally. In the light of the presumption u/s 114 of the Evidence Act this Court can presume that official acts were properly performed, especially when it was not even remotely suggested by the defence that the sample bottle despatched to the chemical examiner''s laboratory was not the sample bottle produced in this case by PW.2 along with Ext.P3 property list.

The contention based on the question of identity of the accused also has no merit. It is true that both PWs.1 and 2 had no previous acquaintance with the accused. But they were proceeding to the spot on getting a credible information from Palamukku and consistent with the information received by them, they did see a person carrying a jerry can and a glass tumbler. Even though the said person was able to make good his escape, both PWs.1 and 2 were able to see his features in the torch light. Moreover, PWs.3 to 5 who are the independent witnesses to the search and seizure and who are the attestors to Ext.P1 contemporaneous mahazar prepared by PW.2 from the spot had identified the accused as the person who took to his heels on seeing the police party. PW.2 has deposed before court that on 5.6.2000 at 12.45 a.m. while arresting the accused, he could identify him as the person whom he had seen at the time of occurrence and that the witnesses who were present at that time had also confirmed his identity. This means that it was after properly confirming the identity of the accused that PW.2 arrested him. No doubt, PWs.3 to 5 who are the independent witnesses have turned unfriendly to the prosecution. But courts are not unfamiliar with such witnesses. Merely because they have turned disloyal to the prosecution, it does not follow that the evidence of PWs.1 and 2 who detected the offence should be thrown overboard (see Sivaraman v. State of Kerala 1981 KLT 9

After an anxious re-appraisal of the oral and documentary evidence in this case I am completely in agreement with the court below. The appellant was rightly convicted for the offence punishable u/s 55(a) of the Abkari Act.

What now survives for consideration is the legality and extent of the sentence imposed on the appellant. The quantity involved is only 4 litres of illicit arrack and the prosecution has no case that the accused is a previous offender. Under these circumstances I am of the view that simple imprisonment for a period of one year and fine of Rs. 1 lakh would suffice.

In the result, this appeal is disposed of confirming the conviction entered, but altering the sentence to simple imprisonment for one year and to pay a fine of Rs. 1 lakh and, on default to pay the fine, to undergo simple imprisonment for four months.