CRL.A/1529/2003 of RAJA,C.NO.9438,C.PRISON,KANNUR Vs STATE OF KERALA on 21 December 2005

JUDGMENT

The appellant was convicted and sentenced for offence under Section 55(a) of the Abkari to undergo rigorous imprisonment for 3 years and to pay fineofRs.1 lakh and in default of payment of fine to undergo rigorousimprisonment for 6 more months. Set off was also allowed.

2. According to prosecution, on 8.8.1999 at about 11 a.m. the accusedwas found in possession of10 bottles of Boss Whisky in contravention of theprovisions of the Kerala Abkari Act, near bus waiting shed in Sheriya Village.To prove the prosecution, the prosecution examined PWs 1 to 3 and markedExts.P1 to P5 and MO1.Accused did not adduce any evidence. The court belowafter considering the evidence in detail found that the prosecution hasestablished the guilt of the accused.

3. PW3 is the Sub Inspector of Police, whodetected the crime. Hedeposed that on 8.8.89 he was on patrol duty. At 11 a.m. he reached near aplace called Muttam and found the accused carrying a bag and standing near abus waiting shed. On suspicion,he was apprehended. On examination, he wasfound in possession of 10 bottles of Whisky containing 750 ml. capacity each.Since he was in possession of contraband articles, in contravention oftheprovisions of the Kerala Abkari Act, he was arrested from the spot. Hewas taken to the police station and a case was registered against him. TheF.I.R is Ext.P1. Seizure mahazar is Ext.P2. PW3 himself conducted theinvestigation and submitted a charge-sheet against the appellant.

4. PW1 is the Police Driver. He deposed that he proceeded for patrolduty along with PW3 and he found the accused standing with a bag near buswaiting shed. On examination he was found to carry 10 bottles of BossWhisky containing 750 ml. Capacity each. Two bottles were seized a sample.The accused was arrested. PW1 corroborated PW3 in all material particulars.Both of them were police officials but nothing is suggested as to why theyshould perjure against the accused. There is no reason either PW1or PW3falsely implicate the accused in a crime. They have stood the test of cross-examination and nothing is brought out to discredit their version. The courtbelow has rightly believed the evidence adduced by both of these witnesses.

5. Learned counsel appearing for the appellant submitted that there issome discrepancy with respect to the material object produced. The seizurewas effected on 8.8.1999. But it is brought out in evidence that, as perthe label, the Whisky was manufactured on 27.8.2001. It is argued that theWhisky, which was manufactured in 2001, could be seized in 1999.Therefore, there is every chance of mistake in producing the contrabandarticle and no liability can be attached to the appellant based on the contents ofsuch bottles. It is true that the date of manufacture is subsequent to thedate of seizure of the article. But the articles were produced in court in 1999itself i.e. much before the date of manufacture of Whisky as evidencedby the labels of the same.

6. Therefore, as the court below rightly heldthat this fact by itself willnot create any suspicion regarding the possibility of change in the articleproduced before the court. The suspicion could have arisen if the seizure waseffected in 1999 and the Whisky which was manufactured in 2001 as per thelabel declaration which is produced only in 2001. The defence has no case that

on the date of production of properties on 16.8.99 some other bottles wereproduced and that MO1 series bottles marked are not the same. Theproduction of the article before the court was much prior to the alleged date ofmanufacture of the Whisky, as seen from the label. In the above circumstances,I do not find any reason to reject the prosecution case on this ground.

7. Learned counsel appearing for the appellant also submitted that thereis inordinate delay in sending the material objects before the court and alsofor analysis. According to him, 8 days delay occurred in sending the sampleto the court and he took one month. This delay materially affected theprosecution case adversely. But, in my view, mere delay by itself will notbe sufficient to discard the prosecution case. As per Section 34 of the AbkariAct, it is sufficient if the article is produced before the court withoutunnecessary delay. Even otherwise, there is nothing to indicate that the delaywas caused deliberately with a view to concoct evidence against the accused.So also, unless there is evidence to indicate that because of the delay someprejudice is caused to the accused and there is chance for producing adifferent article in court the delay may not be material. I find that there isabsolutely no ground to interfere with the order. No other ground was raised.

8. However, learned counsel appearing for the appellant submittedthat the appellant had already suffered seven months' imprisonment and thearticle seized was only 7.5 litres of Indian made foreign liquor. The appellantis a first offender and there is no evidence to show that he was involved inany offence of similar nature. In the above circumstances,considering the facts and circumstances, I find that sentence ofrigorous imprisonment for one year will be sufficient for offence underSection 55(a) of the Abkari Act to meet the ends of justice. Hence, sentence is

modified as follows: The appellant is sentenced to undergo simpleimprisonment for one year and to pay a fine of Rs.1 lakh and in default toundergo simple imprisonment for three months, under Section 55(a) of theAbkari Act.

Appeal is partly allowed.

K. HEMA, JUDGE.

krs.

CRL.A.1529/03

K.HEMA, J. ------------------------------Crl.A.NO.1529 OF 2003

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JUDGMENT

21.12.2005