Kerala High Court
Vasudevan vs State Of Kerala on 13 October, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
THURSDAY, THE 9TH DAY OF MARCH 2017/18TH PHALGUNA, 1938
CRL.A.No. 1749 of 2004 (A)
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AGAINST THE JUDGMENT IN SC 104/2000 of ADDL.SESSIONS JUDGE-
I,MAVELIKKARA DATED 13-10-2004
APPELLANTS/ACCUSED::
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1. VASUDEVAN, S/O.KRISHNAN, VANAJALAYAM
VEEDU, AGED 34 YEARS, WARD NO.IV, VALLIKUNNAM,
PANCHAYATH, KADUVINAL MURI, VALLIKUNNAM VILLAGE.
2. DIVAKARAN, S/O.KOCHUKUNJU,
BABU BHAVANAM VEEDU, WARD NO.IV,, VALLIKUNNAM
PANCHAYATH, KADUVINAL MURI,, VALLIKUNNAM VILLAGE.
BY ADVS.SRI.RASHEED C.NOORANAD
SRI.G.GOPAKUMAR (CHERTHALA)
RESPONDENT/COMPLAINANT::
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STATE OF KERALA, REP. BY THE
SUB INSPECTOR OF POLICE, VALLIKUNNAM REP., BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT.REKHA C. NAIR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
09-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.P.JYOTHINDRANATH, J.
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Crl.Appeal No.1749 OF 2004
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Dated this the 9th day of March, 2017
ORDER
This appeal is preferred by the accused in S.C.No.104/2000 on the files of the Additional Sessions Judge I, Mavelikkara aggrieved by the judgment dated 13.10.2004. In the above sessions case, the conviction is under Section 55 (g) and 8(1) r/w Section 8(2) of the Abkari Act. The appellant herein was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,00,000/- each, in default to undergo simple imprisonment for one year each under Section 55(g) and also to undergo rigorous imprisonment for three years each and also to pay a fine of Rs.1,00,000/- each, in default to undergo simple imprisonment for one year each under Section 8(2) of the Abkari Act.
2. When the appeal came up for hearing, the learned counsel appearing for the appellants submitted that there are conviction under Crl.Appeal No.1749/2004 2 Section 55(g) as well as under Section 8(1) r//w Section 8(2) of the Abkari Act. The facts relevant for consideration of this appeal and the argument relevant for consideration are as follows :
In this case, the Sub Inspector of Police is the detecting officer. On 20.09.1998 at about 12.30 p.m., as per the prosecution case, both the appellants were seen manufacturing illicit arrack from the fire wood shed wherein the first appellant/first accused was residing. The utensils and articles allegedly used by the appellants as well as distiled arrack seen therein were seized. The allegation is that 3 = litres of arrack was seized from the place of incident. It is the case that a seizure mahazar was prepared, the articles were taken to the police station and a crime was registered and investigation conducted and a final report was filed. The court took the case on file, committed to the Sessions Court, wherein the case was tried, and convicted and sentenced the appellants as stated above.
3. The points raised for consideration are :
1)Even though there was an alleged seizure of contraband Crl.Appeal No.1749/2004 3 including illicit arrack, it was produced before the court only after a month of the alleged seizure. The contraband and articles seized were not produced before the court 'forthwith'.
2)When the articles were produced before the court, even though, allegedly, sealed sample was produced, there is nothing to show that the said sample was sent for analysis especially when there is no forwarding note produced by the prosecution in this case.
If the alleged article was sampled from therein and sealed from therein, the specimen seal should have been forwarded to the court for its comparison and analysis. It is usually done when a forwarding note is produced before the court. That was not done in this case. It is the further submission that if the article was sampled from the court as required under the Chemico-Legal Analysis Rules then also the request for the same should have been made by the investigating officer and a copy of the same should have been produced. In this case, it is true that a chemical analysis report is therein. But how it Crl.Appeal No.1749/2004 4 obtained and under what conditions it came into existence or which sample was analysed is not known.
3) The learned counsel argued before me that non-
production of the arrest memo in a case like this is very important especially when the contraband articles are not produced before the court at the earliest point of time. It is the submission that arrest memo is a document which will give assurance or reliability upon the arrest and seizure i.e. when the Hon'ble Apex Court directed the Police that whenever there is an arrest, strict compliance of the provisions of the Code of Criminal Procedure should be therein to ensure that the facts stated by the officer is correct. It is the submission that the combined effect of all these facts casts a suspicion upon the reliability of the prosecution case and the appellants are entitled for acquittal.
4. The learned Public Prosecutor submitted before me that the conviction is under two heads as stated by the learned counsel for the Crl.Appeal No.1749/2004 5 appellants. Section 55(g) requires only the possession of any materials, still, utensil,implement or apparatus for the purpose of manufacturing liquor. In this case, the articles marked before the court itself will show that that are all articles for the manufacturing of arrack i.e. an aluminum pot having a capacity of 35 litres and another aluminum pot having 10 litres capacity with holes on its bottom and there is also a lid having a single hole where rubber tube is fitted. Thus, the articles itself will show that the intention was to manufacture or distill arrack. Thus, even if there is delay in producing the articles, it will only affect the conviction under Section 8(1) r/w Section 8(2) of the Abkari Act and not that one under Section 55(g) of Abkari Act.
5. After hearing the learned counsel, I have very carefully examined the evidence and documents in this case. Ext.P3 is the search list prepared by the Police during search at the house of the accused. As per Ext.P3, it can be seen that the owner of the house is shown as Narayani Saraswathi. In the remark column it is written as on the eastern side of the house bearing No.529 in Ward No. 5 of Crl.Appeal No.1749/2004 6 Vallikkunnam Panchayath a shed was seen and therein the search was conducted. In Column No.7 it is noted that the owner of the house was present. Ext.P7 is the certificate issued by the Village Officer stating that the first accused Vasudevan is a resident of Vanajalayam.
6. The next document relevant for consideration is the seizure mahazar, Ext.P1. As per Ext.P1 it is stated that the Police reached the place of incident i.e. on the slanted construction on the eastern side of house No.539. Therein, two persons were seen distilling arrack. There were arrested, articles were seized and further a can containing arrack is also seized by the Police. The arrack collected from therein is seen as 3 litres in a ten litres can. It is also noted that wash is also seen in one of the pots. Samples are collected.
7. I have perused the search memorandum, which is marked as Ext.P2. The said search memorandum reached at the court on 22.09.1998 even though it is dated 20.09.1998. Ext.P5 is the property list by which all these articles were forwarded to the court. But the said articles reached at the court as per the court seal and initial only on Crl.Appeal No.1749/2004 7 22.10.1998 i.e. there is an inordinate delay of more than one month to reach the said articles before the court. In this case, after investigation, the police filed final charge on 11.1.1999. The oral evidence tendered by the prosecution consisted of the evience of PWs 1 to 6.
8. PW1 is the Sub Inspector who led the police party for the search and seizure. According to him, when they reached the shed attached to the house of Vasudevan namely Vanajalayam, in the said shed two persons were seen. He identified the accused as the persons seen therein. He found the first accused as filling something in a bottle and the other persons was looking after the fire witness identified accused No.2 as the person who was putting fire wood in the fire place. Accused were restrained, after verifying the articles, accused were arrested. As per the evidence, he prepared the arrest memo as well as the inspection memo. But those documents are not seen marked in the proceedings. He further deposed regarding the sampling. Arrack as well as wash was seen therein. According to him, he prepared search list which is marked as Ext.P3. A mahazar is also prepared. Sampled Crl.Appeal No.1749/2004 8 articles are sealed and collected and thereafter FIR was registered. Property list prepared and the property list is marked as Ext.P5. Ext.P1 is the mahazar and Ext.P4 is the FIR.
9. PW2 is a Police Constable who was along with the Sub Inspector during the search and seizure. He also supported the prosecution. PWs 3 and 5 are independent witnesses to search and seizure, who turned hostile. PW4 is the Village Officer who issued a certificate regarding the residence of Vasudevan (Accused No.1). After enquiry he issued the certificate. It is apparent that the said certificate is not issued on the basis of any other document, but only on the basis of an enquiry made by him.
10. PW6 is the Sub Inspector attached to another police station. In this case, a point was raised by the learned counsel for the appellants that a person who is having charge of another station cannot conduct investigation in respect of a crime happened in another jurisdiction and the said alleged authorisation by the Circle Inspector is not having a legal sanctity.
Crl.Appeal No.1749/2004 9
11. In this case, as already pointed out, the main argument advanced by the learned counsel for the appellants is that there is inordinate delay in forwarding the material objects to the court. Admittedly, there is a delay of more than one month. The stand of the prosecution is that in this case surely it will have its own effect in respect of an offence under Section 8(1) and 8(2) of the Abkari Act. But in respect of an offence regarding Section 55(g), such an aspect cannot be taken into consideration. There is force in the submission of the learned Public Prosecutor, because the description of the articles are seen in the seizure mahazar as well as in the property list forwarded to the court. Those descriptions are tallying i.e. the seizure mahazar reached along with F.I.Statement to the court on 21.09.1998. When the description in the seizure mahazar is therein, only because the property list with such a description reached the court along with the property on a belated point will not have much value in respect of articles other than arrack and wash. When there is an inordinate delay of more than one month in reaching the contraband article i.e the sample bottles as Crl.Appeal No.1749/2004 10 well as the liquor before the court, the possibility of tampering will be therein. The analysis of the sample taken from the contraband will be the basis of conviction in a case like this and when tampering in respect of the sample cannot be ruled out, a conviction will not lie. Further more, when the content of the alcohol can be found out only by analysis process, then the delay will be fatal. Thus, the conviction under Section 8(1) and 8(2) of the Abkari Act will not sustain in this case. Hence the conviction under Section 8(1) and 8(2) of the Abkari Act is hereby set aside.
12. The next point is regarding the alleged offence under Section 55(g) of the Abkari Act. Section 55(g) of the Abkari Act reads as follows :
"Uses, keeps or has in his possession any materials, still, utensil, implement or apparatus whatsoever for the purpose of manufacturing liquor other than toddy or any intoxicating drug."
13. After perusing the articles seized as per the scene mahazar Crl.Appeal No.1749/2004 11 wherein the description is therein and further keeping in mind that the said seizure mahazar reached the court immediately along with the FIR and the very same description is forwarded by Ext.P3 which only reached after one month, after appreciating the evidence, it cannot be said that any tampering in respect of the articles can be expected to be done in respect of the articles which are described in the seizure mahazar and produced only at a later point of time.
14. I have very carefully examined the description in the seizure mahazar and the articles received before the court. As per the description in the property list, I am satisfied that MOs marked in this case are the articles described in the seizure mahazar which reached the court immediately along with F.I.Statement. Thus, possession of the same is also seen proved by the evidence of official witnesses whom need not be suspected. Thus, the conviction under Section 55(g) of the Abkari Act is upheld.
15. The only question is that of sentence. At this juncture, the learned counsel submitted before me that one of the appellant is aged Crl.Appeal No.1749/2004 12 72 years now. The detection is as back as in the year 1998. Now we are in 2017 i.e. almost for the last 19 years, he was facing the case and he is now a senior citizen aged 72 years. The only question is what will be the proper sentence that can be imposed in a case like this.
16. After considering the totality of the case and further consdiering all attending circumstances including the nature of the evidence adduced, I am inclined to award a sentence of simple imprisonment for a period of three months and a fine of Rs.1,00,000/-, in default, simple imprisonment for one month.
With the above modification in the sentence, the appeal is partly allowed.
K.P.JYOTHINDRANATH JUDGE sv.