Reji Joseph vs State of Kerala

M.C. Hari Rani, J.—The appellant is the accused in S.C. No. 71/99 on the file of Additional District and Sessions Court (Fast Track-Adhoc), Kozhikode. The appellant stands convicted for the offence punishable u/s 55(a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules and he is sentenced to undergo rigorous imprisonment for a term of three years and to pay a fine of Rs. one lakh with a default sentence to undergo simple imprisonment for nine months. This is under challenge in this appeal.

According to the prosecution case at about 7PM, on 11.3.1998, PWs 1 and 5 while on patrol duty and reached at Meladi junction near the bus stop found the accused carrying a big shopper. On seeing the police party, accused tried to escape hurriedly from the place. He was apprehended and questioned. It was found that the big shopper in his hand contained 30 bottles of Indian Made Foreign Liquor of 375 ml each intending for sale in Mahe, Pondicherry, etc. and imported to Kerala State for sale. Accordingly, the appellant/accused was arrested and Exhibit P1 seizure mahazar was prepared. It is recorded therein that one of the bottle was sealed for sample and the entire bottles were seized. The accused and the seized articles were taken to the police station. Thereupon, Exhibit P6(a) FIR was registered and the accused was produced in court. The said sample was sent to the Chemical Analyst. Exhibit P8 is his report. It reveals that the sample contained ethyl alcohol 28.41% by volume. In the light of the evidence given by PW5, Detecting Officer and on the basis of Exhibit P1 seizure mahazar, Exhibit P6(a) FIR and Exhibit P8 report of chemical analysis, the accused was found guilty of being in possession of 30 bottles of Indian Made Foreign Liquor of 375 ml each imported to Kerala State from Mahe for sale which was seized as per Exhibit P1 seizure mahazar. Accordingly, he was convicted and sentenced as mentioned above.

It is submitted by the learned Counsel for the appellant that even according to the prosecution, the accused was arrested and articles were seized on 11.3.2008 at 7pm. But Exhibit P7 forwarding note and Exhibit P9 property list were reached before court only on 22.4.2008 as revealed from the seal affixed therein. Thus, there is delay of 42 days in producing the alleged contraband articles before court. Hence chance of manipulation cannot be ruled out and therefore the conviction and sentence passed against the appellant are clearly unsustainable, it is submitted. On the other hand, the learned Public Prosecutor supported the impugned judgment and urged that there is no ground for interference.

The prosecution examined PWs 1 to 6 to prove the guilt of the appellant. Of this, PWs 2 and 3 who are the attestors of Exhibit P1 seizure mahazar turned hostile to the prosecution, while PWs 1, 5 and 6 supported the prosecution case. The evidence of PWs 1, 5 and 6 cannot be rejected merely on the ground that they are police officers. No doubt, since they are interested in the success of prosecution, their evidence should be accepted only with care and caution.

The learned Counsel for the appellant has relied on the decision in Narayani v. Excise Inspector 2002 (3) KLT 725 to support his argument regarding delay in producing the articles before court and chance of manipulation. In the said case the article seized as MO1 was a can of 5 litres capacity containing contraband (illicit liquor) from which sample was taken in a 180 ml bottle for the purpose of chemical examination and the sample and the residue in the MO1 can were sealed. Therefore, it was held in that decision that "in the absence of any evidence to prove that residue and sample were kept in the proper custody till the date of producing the same before court, the chance of tampering with the sample taken and the residue seized cannot be ruled out".

The facts in the instance case is entirely different. In the case on hand, the contraband articles seized as revealed from the testimony of PWs 1 and 5 and from Exhibit P1 seizure mahazar and Exhibit P6(a) FIR and Exhibit P9 property list were 30 similar labelled sealed bottles with same substance and one of such bottle was sent for chemical analysis. In such circumstances, from out of large number of similarly labelled bottles purported to contain same type of articles are seized, chemical examination can be done by taking one bottle from it. There was no explanation or suggestion that other bottles contained some other liquid. All the bottles were labelled and sealed similarly. Appellant had no case of any tampering before the trial court. Therefore, there is no reason to say that other bottles were filled with different liquids other than the one contained in the bottle sent for examination. In the absence of any evidence to prove that there was any chance of tampering of the seized articles and any prejudice caused to the appellant/accused on account of the delay in production of sample taken and in production of the contraband seized, no benefit of doubt can be given to the accused as argued by the learned Counsel for the appellant. Therefore, the findings on facts, thus, recorded by the court below are not liable to be disturbed on the ground of delay in production of the contraband seized and the sample taken. Considering the facts in this case, the decision in Narayani''s case 2002 (3) KLT 725 cannot be applied herein.

As far as this case is concerned, the question to be considered is whether the prosecution was successful in proving that the accused was in possession of the alleged contraband articles. Official witnesses PWs 1 and 5 deposed that on 11.3.1998 at 7 P.M. the articles were seized from the possession of the appellant while he was standing near the bus stop near Meladi junction as described in Exhibit P4 scene mahazar holding a big shopper. On seeing the police, the appellant tried to escape from the scene. On suspicion, he was intercepted and the contents in the big shopper were examined. On inspection 30 bottles of Indian Made Foreign Liquor of 375 ml each was found inside. The same was seized and the accused was arrested. The seized contraband articles and the accused were taken to the Police Station by PWs 1 and 5 and the case was registered against the accused who was produced in court on the next day on 12.3.1998. The case was investigated by PW6. After verifying the investigation done by PW6, PW5 laid the final charge before court on 22.4.1998 along with the forwarding note and property list, Exhibits P7 and P9. PWs 1 and 5 identified the accused and also the seizure of MO1 series as the contraband articles seized from the possession of the accused as per the seizure mahazar, Exhibit P1. Thus, the prosecution has proved that the accused was in possession of the contraband article and the same was seized from his possession. But, the persons who signed Exhibit P1 mahazar deposed that they have not seen the seizure. They have only signed the mahazar and they denied the contents of the mahazar and PWs 2 and 3 both the independent witnesses examined were turned hostile. At the same time, both of them admitted their respective signature in Exhibit P1. Their testimony regarding the circumstances for affixing their signatures in Exhibit P1 does not appear to be true as found by the learned Sessions Judge. The evidence of PW5 regarding the seizure of the article from the possession of the accused as revealed from Exhibit P1 can be accepted and relied on as done by the trial court. The same is corroborated by the evidence of PWs 1 and 6 and Exhibit P8 chemical analysis report. The contraband articles were not intended for sale in the State of Kerala which were imported from Mahe. In this case, on a close scrutiny of the evidence of PWs 1 and 5, the learned Sessions Judge found that their evidence is cogent, convincing and trustworthy. I see no reason to take a different view. Therefore there is no reason for reversing the conviction.

Anyhow, the sentence of imprisonment for three years is excessive and it is reduced to six months, especially when he is liable to pay a fine of Rs. 1 lakh which is the minimum in terms of the statute prescribing penalty.

Appeal is disposed of as above.