Padinhattayil Rethi vs State of Kerala

K. Ramakrishnan, J.—Accused in S.C. No. 227/2000 on the file of the Additional Sessions Judge (Adhoc-1), Thalassery, is the appellant herein. The appellant was charge-sheeted by the Circle Inspector of Police, Payyannur, in Crime No. 41/1998 of Peringome police station under Section 8(1) read with Section 8(2) (wrongly shown as 55(a) of Abkari Act.

The case of the prosecution in nut shell was that, on 16.02.1998, at about 4.45 p.m., the accused was found to be in possession of about 2 liters of arrack kept in the kitchen in her house situated at Vayakkara Amsom, for the purpose of sale, in violation of the provisions of Abkari Act and thereby she had committed the offence punishable under Section 55(a) of Abkari Act.

After investigation, final report was filed before the Judicial First Class Magistrate Court, Payyannur, where it was taken on file as C.P. No. 31/2000 and the learned magistrate committed the case to the court of Sessions, Thalassery, and the learned Sessions Judge has taken cognizance of the case as S.C. No. 227/2000 and thereafter made over to Additional Sessions Judge (Adhoc-1), Thalassery, for disposal.

When the accused appeared before the court below after hearing the counsel for the appellant and the learned Additional Public Prosecutor, charge under Section 55(a) of Abkari Act was framed 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 and 3 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 she has been falsely implicated in the case, using the article taken by the ''Madya Virudha Samithi''. Since the evidence does not warrant an acquittal under Section 232 of the Code of Criminal Procedure, the learned Additional Sessions Judge directed the accused to enter on her defence, but no defence evidence was adduced. After considering the evidence on record, the court below found the appellant guilty under Section 55(a) of the Abkari Act and convicted her there under and sentenced her to undergo rigorous imprisonment for one year and also to pay a fine of 1,00,000/- in default to undergo rigorous imprisonment for three months. Set off was allowed for the period of detention undergone by her in the case. Aggrieved by the same, the present appeal has been preferred by the appellant/accused before the court.

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

The learned counsel for the appellant submitted that, the investigating officer in this case was not examined. It was he who had sent the forwarding note, which reached the court only on 22.06.1998, though the detection was made on 16.02.1998. Further, the article was seized from the kitchen and not from the possession of the accused and so the possession of the article with the appellant has not been established by the prosecution. There is no evidence adduced to show as to when the article reached the court and the delay in sending the article was not explained. So under the circumstances, according to the counsel for the appellant, the lower court was not justified in convicting the appellant for the offence alleged. So she is entitled to get the acquittal.

On the other hand, the learned Public Prosecutor submitted that, the investigating officer could not be examined because he was under suspension and he went to Gulf and his presence could not be procured and the documents were marked through PW 1, who is the detecting officer in this case. No prejudice has been caused to the appellant on account of non examination of the investigating officer and evidence of PW 1 on these aspect was not challenged as well. Further the property was produced on the next day itself before the court below and the sample was sent for analysis. So the delay in sending chemical analysis is not fatal and there was no possibility of tampering the sample, and the sample has already been produced before the court and the court was in possession of the same. So under the circumstances, the lower court was justified in convicting the appellant for the offence alleged.

The case of the prosecution was that, on 16.02.1998, PW 1 the detecting officer, who is the Sub Inspector of Police, Peringome police station, got information that, arrack was kept in the house of the accused, who is the appellant herein, for the purpose of sale and immediately he had prepared search memo and thereafter he went to the house of the accused and conducted search in the presence of PW 3 and another independent witness and found two liters of cannas with liquid in it, kept in the kitchen among the vessels. On verification of the same, he was satisfied that, it was arrack and he convinced the witnesses and he had taken sample from the contents of MO 1 cannas, which was found in the house and sealed the sample bottle and also the cannas and seized the same as per Ext. P1 search list and thereafter arrested the accused from the spot and prepared Ext. P3 arrest memo. Thereafter, he came to police station and registered Ext. P2 first information report, as Crime No. 41/1998 of Peringome police station under Section 55(a) of Abkari Act and he had produced the accused along with the property list, first information report and Search list on the next day itself and thereafter the investigation was undertaken by CW 10, the then Circle Inspector of police Payyannur. He questioned the witnesses and as per his request, PW 3 the Village Officer prepared Ext. P6 Sketch/plan of the place of occurrence. CW 10 sent Ext. P4 forwarding note to court and the sample was sent from the court to chemical analysis laboratory and Ext. P5 report was obtained, which will go to show that, the sample contained 19.66% by volume of ethyl alcohol. Though he was cross examined at length, nothing was brought out to discredit his evidence regarding these aspects. PW 2 an independent witness examined had admitted the arrest of the accused and also affixed his signature in Ext. P1 search list, but according to him, he had not witnessed the incident/seizure. He had also admitted that, other signature in Ext. P1 is that of his friend, who is now in Gulf. So the fact that, PW 2 and other witnesses were present and they signed Ext. P1 was admitted by him. It is also admitted by PW 2 that, accused is known to them. So it is clear from this, he is now trying to help the accused and that was the reason why, though he admitted the signature, he did not support the case of the prosecution, regarding the seizure of the article.

Merely because the seizure, witness has turned hostile and did not support the seizure itself is not a ground to disbelieve the case of the prosecution, regarding the seizure and if the evidence of detecting officer is acceptable and without any shadow of doubt, then there is nothing wrong for the court to rely on the evidence of official witnesses to convict the accused for the offence alleged. In this case, nothing was brought out to discredit the evidence of PW 1 regarding the search and seizure effected. Further the fact that, the accused was arrested from that house is also in away admitted by PW 2/the independent witness.

It is true that, the investigating officer has not been examined in this case. It was brought out to the evidence that, he was under suspension and he is not available for giving evidence and his whereabouts were not known and he is in Gulf country. So under the circumstances, the documents which have been prepared by CW 10 were marked through PW 1 and the genuineness of this documents were not seriously challenged in cross examination as well. It is settled law that non examination of investigation officer is not always fatal to the prosecution and that cannot be a ground for acquittal of the accused unless prejudice has been caused to the accused. If the same has to be established by the accused, no such thing was either suggested or established by the accused in this case. So it is not fatal in this case.

It is seen from the property list produced in court that, the articles were produced before court on 17.02.1998 itself and was deposed by PW 1 that, till it was produced in court, it was in his custody. This aspect was also not challenged in cross examination. So there is no possibility of any tampering of the articles, which was produced before the court. It is true that, Ext. P4 forwarding note carries the date 22.06.1998 and it was signed by CW 10 and it was proved through PW 1. It is seen from the property list that, the sample was retained in court itself and only MO 1 cannas was sent to police station for custody, which was later produced and identified by PW 1 as MO 1, when he was examined in court, as the cannas seized from the house from where it was seen and from where the accused was also arrested. So there is no delay in producing the article and Ext. P5 chemical analysis report, shows that, two samples which were taken from the contents of MO 1 cannas as described in Ext. P1 search list each contained 19.66% by volume of ethyl alcohol, which is far below the required quantity to be present in standard arrack. So it was proved that, it was illegally manufactured arrack and the possession of which is punishable under Section 8(1) read with Section 8(2) of Abkari Act.

There is no case for the accused when PW 1 was examined, that except the accused any other person was present in that house or it was in the possession of some other person. It is not necessary that, the person found in the house is the owner of the house. A person who is in possession of the house, from where the article is seized, is expected to account for the same and if it is not accounted, then the presumption under Section 64 of the Abkari Act can be attracted and it can be presumed that, the accused had committed the offence. Merely because, wrong section has been quoted by the court will not entitle the accused get an acquittal, as after 01.04.1997, the possession of arrack itself is an offence and it was punishable under Section 8(1) read with Section 8(2) of the Abkari Act. So the court below ought to have convicted the accused under Section 8(1) read with Section 8(2) of the Abkari Act, instead of Section 55(a) of the Abkari Act. So in view of the discussions made above, it can be specifically concluded that, the prosecution has proved beyond reasonable doubt that, the accused was found to be in possession of arrack, which is punishable under Section 8(1) read with Section 8(2) of the Abkari Act, which was wrongly shown as 55(a) of the Abkari Act by the lower court and the conviction entered by the court below is perfectly justified and it does not call for any interference.

As regards the sentence is concerned, the counsel for the appellant submitted that, the appellant is aged 45 years and she has not involved in any other crime. Considering the fact that, the persons who had committed the offence under the Abkari Act are in fact committing the offence knowing the consequence of the same and its impact on the society as well, they are only doing it for the purpose of getting money, if such persons were found guilty, that must be dealt with severely. The court below had imposed one year rigorous imprisonment and also imposed minimum fine of 1,00,000/- with default sentence of rigorous imprisonment of three months. Considering the fact that the appellant is a lady, this court feels that some leniency can be shown in the sentence. The substantive sentence of one year rigorous imprisonment and default sentence of three months rigorous imprisonments can be modified to six months simple imprisonment and one month simple imprisonment respectively and that will meet the ends of justice.

So the appeal is allowed in part. The order of conviction passed by the court below, against the appellant under Section 8(1) read with Section 8(2) of the Abkari Act (wrongly shown as 55(a) of Abkari Act) and fine of 1,00,000/- imposed are hereby confirmed. But the substantive sentence of one year and rigorous imprisonment of one year and default sentence of three months imposed are set aside and the same is modified as follows:

The appellant is sentenced to undergo simple imprisonment for six months and also to pay a fine of 1,00,000/- default to undergo simple imprisonment for one month more. Set off was allowed for the period of detention already undergone by her.

With the above modification of the sentence alone, the appeal is allowed in part. Office is directed to communicate this order to the court below for further necessary action.