Kerala High Court
Shaji vs Unknown on 9 October, 2012
Author: N.K.Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
TUESDAY, THE 9TH DAY OF OCTOBER 2012/17TH ASWINA 1934
Crl.Rev.Pet.No. 4172 of 2008 ( )
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CRA.1042/2007 of I ADDL.DISTRICT COURT, KOZHIKODE
SC.266/2005 of I ADDL. SESSIONS COURT, KOZHIKODE
REVISION PETITIONER(S)/APPELLANT:
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SHAJI, S/O. KRISHNAN,
KARINGUMMAL, CHEVAYUR AMSOM DESOM, KOZHIKODE TALUK.
BY ADV. SRI.P.V.KUNHIKRISHNAN
COMPLAINANT(S)/COMPLAINANT:
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STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA
ERNAKULAM.
PUBLIC PROSECUTOR SMT. JASMINE
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 09-10-2012, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
N.K. Balakrishnan, J.
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Crl.R.P. No. 4172 of 2008
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Dated: 9-10-2012
ORDER
The challenge in this revision petition is the concurrent conviction entered and the sentence passed against the petitioner for offence under Section 8(1) read with Sec. 8(2) and Sec. 55 (g) of the Abkari Act. He was sentenced to rigorous imprisonment for two years and to pay Rs. 1,00,000/- as fine and in default to undergo simple imprisonment for three months each.
2. The case of the prosecution is that on 13-12- 2003 at about 12.30 p.m. when P.W.1 the Excise Inspector of Excise Range, Kozhikode was on patrol duty along with his subordinates and when they reached near the Higher Crl.R.P. No. 4172 of 2008 -:2:- Secondary School of Medical College Campus, a reliable information was received that the accused was distilling arrack in his house bearing No. B18/151. Accordingly, a search memo was prepared and forwarded the same to the court and, thereafter, P.W.1 and his Excise party along with the witnesses reached the said house. The front door of the house was seen closed and so P.W.1 and others went to the rear side of the house. They could then see the accused coming out of the house with a can in his hand. He was intercepted. The can was examined. By smell and taste the liquid in it was identified to be arrack. Thereafter, the said house was searched in the presence of the accused and witnesses. P.W1 and others could find the distilling set (the set already used for distillation) and also three barrels of 200 litre capacity which contained full of wash. When the southern room of that building was Crl.R.P. No. 4172 of 2008 -:3:- searched, barrels of a capacity of 200 litres each containing full of 'wash' was found. Another cement barrel /jaddy of a capacity of 200 litres with full of wash was also seen in that room. When the northern room of that house was searched, 6 cans of 10 litre capacity each containing full of arrack, three cans of 5 litre capacity which also contained full of arrack were seen. In the aluminum vessel of a capacity of 100 litres, which was part of the distilling set, about 30 litres of 'used wash' i.e. wash after distillation was seen. Items contained in the cement jaddy, plastic cans and other vessels were identified by smell and taste by P.W.1 and other officers, as P.W.1 and other officers were experienced in that field to identify the same by smell and taste. Samples taken from the 'wash', illicit liquor/arrack etc. were sealed then and there. Ext.P2 mahazar was prepared for the seizure of the Crl.R.P. No. 4172 of 2008 -:4:- articles mentioned above. Labels containing the signatures of the accused and the witnesses were affixed on the sample bottles, barrels and cans seized as per Ext. P2. Ext.P2, the seizure mahazar contains the specimen impression of the seal affixed on the sample bottles etc. and it was that sample which was used by P.W.1 for sealing the sample bottles. What transpired then and there was also described in detail in that mahazar. The independent witnesses were also convinced of that fact. All those articles were seized as per Ext.P1 search list prepared then and there which was signed by the petitioner as the person who was described as the owner of the house searched. He has also signed on the reverse of Ext.P1 for having received the copy of the search list. The accused was arrested then and there for which Ext.P3 arrest memo was prepared. The crime and occurrence report (Ext.P4), was Crl.R.P. No. 4172 of 2008 -:5:- prepared on the same day. The accused, records and articles were produced before the Magistrate on the same day at 7.20 p.m. After investigation, charge was laid.
3. P.Ws 1 to 7 were examined and Exts.P1 to P8 were marked. Material objects, MO1 to MO7 series, were also marked to prove the case of the prosecution. The courts below accepted the prosecution case, and accordingly, the petitioner was found guilty, convicted and sentenced as mentioned above.
4. The learned counsel for the petitioner vehemently argues that the petitioner was not the owner of the house as evidenced by Ext.P7. Though the owner Sherly Bai was cited as a witness, the learned Public Prosecutor who conducted the case before the trial Court, for reasons best known to him, did not examine her to prove as to how the petitioner happened to be in control or possession of Crl.R.P. No. 4172 of 2008 -:6:- that house. The learned Public Prosecutor submits that though that witness should have been examined, for the mere non-examination of that witness, the prosecution case cannot be thrown overboard since the evidence and circumstances obtained in this case would clearly prove that the petitioner was in actual possession of the articles found in that house. He had no explanation as to how he happened to come out of the house with a can containing illicit arrack . It is also important to note that it was in his presence the entire house was searched where from several cans containing illicit liquor and barrels containing 'wash' intended for manufacture of liquor were found, that too, kept in different rooms. The further fact is that the petitioner who signed Ext.P1 search list, described himself as the owner. That also is of paramount importance. The very fact that he had no explanation, as to how he Crl.R.P. No. 4172 of 2008 -:7:- happened to come out of the house carrying with him a can containing illicit arrack speaks volumes. The further fact is that the front door of the said house was seen closed and plastic cans containing illicit arrack and barrels of wash were found in different rooms in that house. It was so proximate and interconnected that the chain of evidence and circumstances would clearly establish that the petitioner alone was the person having immediate control and possession of the articles found therein. When a set of facts are presented before court it is for the court to have reasonable deductions and inferences which are permissible under law. It cannot be branded as assumptions or suppositions. There was only a blunt and outright denial by the accused. He did not try to explain the incriminating circumstances against him.
5. It is argued by the learned counsel for the Crl.R.P. No. 4172 of 2008 -:8:- petitioner that since the house belonged to Sherly Bai and since there is no other evidence to show that the said building was leased out or was given possession of to the petitioner, it cannot be said that he was in possession of or having dominion or control over the contraband articles found in that house. It is further argued that unless it is established that the petitioner was in actual possession of the wash, cans and barrels etc. containing liquor, it cannot be said that he was having dominion or control over the same. So far as the case on hand is concerned the petitioner was seen coming out of that house carrying the plastic can of 10 litre capacity containing in it full of liquor.
6. When P.W1 and others searched that house in the presence of the petitioner, in the kitchen room a distillation set was found. They were convinced of the Crl.R.P. No. 4172 of 2008 -:9:- fact that the distillation was just over. The further fact is that in the other rooms, barrels of wash and also cans containing liquor were seen. These crucial inculpatory factors clearly form a chain that barrels of wash were kept in that building with intent to manufacture illicit liquor. It is further fortified by the fact that the plastic cans containing illicit liquor were found in the rooms. Therefore, the reasonable inference that can be deduced is that the liquor mentioned above was obtained by illicit distillation from the very same building.
7. MO1series to MO7 which were seized as per Ext. Ext. P2 mahazar were identified and marked through PW.1 Upon those properties, labels containing the signatures of the accused and witnesses were affixed. That will prove that those contraband articles were seized from the possession of the accused. Since the petitioner alone was Crl.R.P. No. 4172 of 2008 -:10:- there in that house and since he had no explanation to offer, the contention that the prosecution has not proved that the petitioner was in conscious possession of the articles is found to be denuded of any merit.
8. It could be seen that in the distillation set found by P.W.1, the lower most pot or vessel contained the liquid (wash) which had already been used for distillation. The tube fitted to the pot for getting the ethyl alcohol condensed to fall in drops in the pot or can kept beneath the tube was indicative of the fact that distillation was conducted in that building. It is true that the charge is not under Section 55 (b) of the Act. But these factors are highlighted by the prosecution to contend that the chain of events is so complete that it would leave no doubt that the petitioner was having actual possession or dominion over the entire contraband articles found in that building from Crl.R.P. No. 4172 of 2008 -:11:- out of which one can containing liquor was being taken out by him and was about to leave through the door on the rear side.
9. It is vehemently argued by the learned counsel for the petitioner that Ext.P2 mahazar does not show that any sample was taken from the plastic can containing illicit liquor seized from the actual possession of the petitioner and so it cannot be said that the can carried by the accused contained illicit liquor. The argument proceeds on the premise that P.W.1 should have taken sampe from each of the liquor cans found in that building and also a separate sample from the can which was allegedly carried by the petitioner while he was coming out of the said building. The argument that has been advanced is that if there is no evidence to show that the sample was taken from the can which was actually carried by the petitioner, Crl.R.P. No. 4172 of 2008 -:12:- and if the petitioner cannot be saddled with the liability for the wash or other contraband items found in the said building, then the petitioner is entitled to be given the benefit of reasonable doubt.
10. In evidence P.W.1, the Excise Inspector and P.W.2, the Preventive Officer have stated that sample of 180 ml. was taken from the liquor contained in the can of 10 litre capacity which was carried by the accused and that sample was separately sealed and labelled. The learned counsel for the petitioner submits that since that was not specifically mentioned in the seizure mahazar, P.Ws 1 and 2 cannot advance their case in evidence and so that part of the evidence cannot be accepted by the Court.
11. The learned Public Prosecutor would submit that P.Ws 1, 2 and other officials are well experienced in the field, that they can identify the liquor and wash etc. by Crl.R.P. No. 4172 of 2008 -:13:- smell and taste. That identification of wash or liquor by smell or taste is not used here to hold that the petitioner should be held guilty but that fact has been projected by the prosecution to contend that it was possible for P.Ws 1, 2 ad other officials to identify and to come to a conclusion that the liquor contained in all the cans including the can which was carried by the accused was identical ; to mean that it was arrack or liquor. It was also possible for them to identify the liquid purported to be wash contained in certain barrels and jaddy etc. mentioned earlier. Therefore, it was not necessary for P.W.1 to take sample from each of those cans, barrels etc. Since representative samples were taken, it cannot be said that there was no proper sample or sealing.
12. The main argument advanced by the learned counsel for the petitioner is that since it was not Crl.R.P. No. 4172 of 2008 -:14:- specifically mentioned in Ext.P2 that sample was taken from the can actually carried by the accused, the accused cannot not be found guilty of the offence for possession of that can containing liquor. But in view of what has been stated above, there is no reason to hold that the liquor contained in the plastic cans, barrels etc. was identical or almost identical. Even if the defence version that 180 ml. of sample was not proved to have been taken from the can containing 10 litre capacity actually carried by the accused is accepted , still the evidence is sufficient to hold that the liquor contained in different cans, vessels etc. was identical. Therefore, the sample taken from one of the representative items would satisfy the requirement. In fact the courts below found no difficulty to accept the evidence given by P.Ws 1 and 2 to hold that the sample of 180 ml. was taken from the can which was carried by the accused. Crl.R.P. No. 4172 of 2008 -:15:- I find no reason to hold otherwise. It is also worthwhile to note that when P.Ws. 1 and 2 were in the witness box, the evidence given by them regarding the sampling was not effectively challenged. No question was put to P.Ws 1 and 2 that the sample of 180 ml. taken by P.W1 was not from the can of 10 litre capacity carried by the accused but from some other can. The further fact that even in Ext.P2 mahazar, the specimen impression of the seal was affixed would vouch for the correctness of the procedure followed by P.W.1. The evidence given by P.W1 that on the material objects, the labels containing the signatures of the accused and the witnesses were affixed were also not effectively controverted.
13. It is also pertinent to note that Ext.P1 search list and Ext.P3 arrest memo which were signed by the accused and witnesses, Ext.P2 seizure mahazar, Ext.P4 Crl.R.P. No. 4172 of 2008 -:16:- crime and occurrence report and Ext.P5 forwarding note reached the Court on the same day at 7.20 p.m. Ext.P2 seizure mahazar contains detailed description of the factors noticed by them in respect of which evidence was given by P.W.1. It really instilled confidence in the mind of the trial court and the appellate court.
14. In the light of what has been stated above, the contention advanced by the learned counsel for the petitioner is found to be rather unsound and untenable.
15. Relying on the evidence given by P.Ws 1 and 2 and Ext.P8 report of the Chemical Examiner it was found by the courts below that the petitioner was in possession of 'arrack' as defined in Section 3 (6A). Since the petitioner was found in possession of the same it was rightly held that he has committed the offence under Section 8 (1) punishable under Section 8 (2) of the Abkari Act. Since Crl.R.P. No. 4172 of 2008 -:17:- the petitioner was also found in possession of wash and other utensils intended for manufacture of illicit arrack , he was rightly found guilty and convicted of the offence under Section 55 (g) of the Abkari Act. The conviction is to be thus confirmed .
16. The learned counsel for the petitioner submits that leniency may be shown in the matter of sentence. Considering the fact that the petitioner was manufacturing illicit liquor in the building mentioned above and since wash and liquor seized were of large quantity, the petitioner is not entitled to get leniency in the matter of sentence. However, the substantive sentence can be reduced to rigorous imprisonment for 20 months but the fine imposed and the default sentence awarded by the courts below is to be sustained. In the result, this Crl.R.P. is disposed of as stated below:
Crl.R.P. No. 4172 of 2008 -:18:-
Conviction for the offence under Sections 8(1) read with 8(2) and 55 (g) of the Abkari Act is confirmed. While maintaining the fine imposed and the default sentence awarded by the courts below, the substantive sentence awarded by the courts below stand reduced to rigorous imprisonment for twenty months each. Substantive sentence will run concurrently.
Dated this the 9th day of October, 2012.
Sd/-N.K. Balakrishnan, Judge.
ani. /truecopy/
P.S.toJudge