Criminal Appeal No. 867 of 2002 · Kerala High Court · 2009

M.C.HARI RANI, J. ----------------------------------------------------- Crl.Appeal No.867 OF 2002----------------------------------------------------- DATED THIS THE 25th DAY OF SEPTEMBER, 2009J U D G M E N T The appellant is the accused in S.C.No.71/99 on the file ofAdditional District and Sessions Court(Fast Track-Adhoc),Kozhikode. The appellant stands convicted for the offencepunishable under section 55(a) of the Abkari Act read with Rule 9of the Foreign Liquor Rules and he is sentenced to undergorigorous imprisonment for a term of three years and to pay a fineof Rs.one lakh with a default sentence to undergo simpleimprisonment for nine months. This is under challenge in thisappeal.2.According to the prosecution case at about 7PM, on11.3.1998, PWs 1 and 5 while on patrol duty and reached atMeladi junction near the bus stop found the accused carrying abig shopper. On seeing the police party, accused tried to escapehurriedly from the place. He was apprehended and questioned.It was found that the big shopper in his hand contained 30bottles of Indian Made Foreign Liquor of 375 ml each intending CRL.A.No.867/02 -2for sale in Mahe, Pondicherry, etc. and imported to Kerala Statefor sale. Accordingly, the appellant/accused was arrested andExhibit P1 seizure mahazar was prepared. It is recorded thereinthat one of the bottle was sealed for sample and the entirebottles were seized. The accused and the seized articles weretaken to the police station. Thereupon, Exhibit P6(a) FIR wasregistered and the accused was produced in court. The saidsample was sent to the Chemical Analyst. Exhibit P8 is hisreport. It reveals that the sample contained ethyl alcohol28.41% 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, theaccused was found guilty of being in possession of 30 bottles ofIndian Made Foreign Liquor of 375 ml each imported to KeralaState from Mahe for sale which was seized as per Exhibit P1seizure mahazar. Accordingly, he was convicted and sentencedas mentioned above. 3.It is submitted by the learned counsel for the appellantthat even according to the prosecution, the accused was arrested CRL.A.No.867/02 -3and articles were seized on 11.3.2008 at 7pm . But Exhibit P7forwarding note and Exhibit P9 property list were reached beforecourt only on 22.4.2008 as revealed from the seal affixedtherein. Thus, there is delay of 42 days in producing the allegedcontraband articles before court. Hence chance of manipulationcannot be ruled out and therefore the conviction and sentencepassed against the appellant are clearly unsustainable, it issubmitted. On the other hand, the learned Public Prosecutorsupported the impugned judgment and urged that there is noground for interference. 4.The prosecution examined PWs 1 to 6 to prove theguilt of the appellant. Of this, PWs 2 and 3 who are the attestorsof Exhibit P1 seizure mahazar turned hostile to the prosecution,while PWs 1, 5 and 6 supported the prosecution case. Theevidence of PWs 1, 5 and 6 cannot be rejected merely on theground that they are police officers. No doubt, since they areinterested in the success of prosecution, their evidence should beaccepted only with care and caution.5.The learned counsel for the appellant has relied on the CRL.A.No.867/02 -4decision in Narayani v. Excise Inspector (2002(3) KLT 725)to support his argument regarding delay in producing the articlesbefore court and chance of manipulation. In the said case thearticle seized as MO1 was a can of 5 litres capacity containingcontraband (illicit liquor) from which sample was taken in a 180ml bottle for the purpose of chemical examination and the sampleand the residue in the MO1 can were sealed. Therefore, it washeld in that decision that “in the absence of any evidence toprove that residue and sample were kept in the proper custodytill the date of producing the same before court, the chance oftampering with the sample taken and the residue seized cannotbe ruled out”.6.The facts in the instance case is entirely different. Inthe case on hand, the contraband articles seized as revealed fromthe testimony of PWs 1 and 5 and from Exhibit P1 seizuremahazar and Exhibit P6(a) FIR and Exhibit P9 property list were30 similar labelled sealed bottles with same substance and one ofsuch bottle was sent for chemical analysis. In suchcircumstances, from out of large number of similarly labelled CRL.A.No.867/02 -5bottles 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 bottlescontained some other liquid. All the bottles were labelled andsealed similarly. Appellant had no case of any tampering beforethe trial court. Therefore, there is no reason to say that otherbottles were filled with different liquids other than the onecontained in the bottle sent for examination. In the absence ofany evidence to prove that there was any chance of tampering ofthe seized articles and any prejudice caused to theappellant/accused on account of the delay in production ofsample taken and in production of the contraband seized, nobenefit of doubt can be given to the accused as argued by thelearned counsel for the appellant. Therefore, the findings onfacts, thus, recorded by the court below are not liable to bedisturbed on the ground of delay in production of the contrabandseized and the sample taken. Considering the facts in this case,the decision in Narayani's case (2002(3) KLT 725) cannot beapplied herein. CRL.A.No.867/02 -67.As far as this case is concerned, the question to beconsidered is whether the prosecution was successful in provingthat the accused was in possession of the alleged contrabandarticles. Official witnesses PWs 1 and 5 deposed that on11.3.1998 at 7 P.M. the articles were seized from the possessionof the appellant while he was standing near the bus stop nearMeladi junction as described in Exhibit P4 scene mahazar holdinga big shopper. On seeing the police, the appellant tried to escapefrom the scene. On suspicion, he was intercepted and thecontents in the big shopper were examined. On inspection 30bottles of Indian Made Foreign Liquor of 375 ml each was foundinside. The same was seized and the accused was arrested. Theseized contraband articles and the accused were taken to thePolice Station by PWs 1 and 5 and the case was registeredagainst the accused who was produced in court on the next dayon 12.3.1998. The case was investigated by PW6. After verifyingthe investigation done by PW6, PW5 laid the final charge beforecourt on 22.4.1998 along with the forwarding note and propertylist, Exhibits P7 and P9. PWs 1 and 5 identified the accused and CRL.A.No.867/02 -7also the seizure of MO1 series as the contraband articles seizedfrom the possession of the accused as per the seizure mahazar,Exhibit P1. Thus, the prosecution has proved that the accusedwas in possession of the contraband article and the same wasseized from his possession. But, the persons who signed ExhibitP1 mahazar deposed that they have not seen the seizure. Theyhave only signed the mahazar and they denied the contents ofthe mahazar and PWs 2 and 3 both the independent witnessesexamined were turned hostile. At the same time, both of themadmitted their respective signature in Exhibit P1. Their testimonyregarding the circumstances for affixing their signatures inExhibit P1 does not appear to be true as found by the learnedSessions Judge. The evidence of PW5 regarding the seizure ofthe article from the possession of the accused as revealed fromExhibit P1 can be accepted and relied on as done by the trialcourt. The same is corroborated by the evidence of PWs 1 and 6and Exhibit P8 chemical analysis report. The contraband articleswere not intended for sale in the State of Kerala which wereimported from Mahe. In this case, on a close scrutiny of the CRL.A.No.867/02 -8evidence of PWs 1 and 5, the learned Sessions Judge found thattheir evidence is cogent, convincing and trustworthy. I see noreason to take a different view. Therefore there is no reason forreversing the conviction.8.Anyhow, the sentence of imprisonment for three yearsis excessive and it is reduced to six months, especially when he isliable to pay a fine of Rs.1 lakh which is the minimum in terms ofthe statute prescribing penalty.9.Appeal is disposed of as above.M.C.HARI RANI, JUDGE.dsn