K. Rajendran vs State Of Kerala
2022 Latest Caselaw 7672 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT

        THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
 TUESDAY, THE 28TH DAY OF JUNE 2022 / 7TH ASHADHA, 1944
                     CRL.A NO. 711 OF 2014
AGAINST THE JUDGMENT DATED 16.07.2014 IN S.C.NO.156/2011
   OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - I,
        KASARAGOD / I ADDITIONAL MACT, KASARAGODE
   (CP 184/2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS
                          -I,HOSDRUG)
APPELLANT/ACCUSED:

            K. RAJENDRAN
            AGED 43 YEARS, S/O.KINNI,
            SARKARI HOUSE, SARKARI COLONY, ENNAPPARA,
            THAYANNUR VILLAGE, HOSDURG TALUK.
            BY ADV SMT.T.SUDHAMANI


RESPONDENT/STATE:

            STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, ERNAKULAM - 682 031.

            SMT MAYA M.N- P.P


     THIS    CRIMINAL   APPEAL   HAVING   COME   UP   FOR   FINAL
HEARING ON 17.06.2022, THE COURT ON 28.06.2022 DELIVERED
THE FOLLOWING:
                                        2
Crl.Appeal No.711 of 2014


                              JUDGMENT

S.C.No.156 of 2011 arose on a report filed by the Sub

Inspector of Police, Ambalathara Police Station, under Section

50 of the Abkari Act, 1077 before the Judicial Magistrate of

First Class-I, Hosdurg. The report was submitted alleging

commission of an offence punishable under Sections 55(a),

(b) and (g) of the Abkari Act. The Magistrate committed the

case as provided in Section 209 of the Code of Criminal

Procedure, 1973, and the Sessions Court, Kasaragod, after

taking cognizance of the offences, made over it to the

Additional Sessions Judge-I, Kasaragod. After trial, the

appellant/accused was convicted and sentenced for the

offence punishable under Sections 55(a) and (g) of the Abkari

Act. The legality of the said judgment is under challenge in

this appeal filed under Section 374(2) of the Code.

2. The allegation against the appellant was that at or

about 7.15 a.m. on 13.08.2010, he was found in possession

of 2 litres of illicit arrack and 15 litres of wash along with

utensils for illicit brewing at the lean-to on the eastern side,

Crl.Appeal No.711 of 2014

attached to his residential building. He was caught red-

handed by PW6, the Sub Inspector of Police, Ambalathara

Police Station.

3. At the trial, PWs.1 to 6 were examined and Exts.P1 to

P11 were marked. On the basis of the said evidence adduced by

the prosecution, the appellant was questioned under 313(1)(b) of

the Code. He denied all the incriminating circumstances appeared

in evidence against him. He had submitted a statement wherein

he iterated that the case was foisted against him and he did not

involve in the alleged act of brewing of illicit arrack or possessing

any contraband articles as alleged. The Additional Sessions

Judge, after hearing both sides, found that the prosecution

satisfactorily proved the guilt of the accused.

4. This appeal was admitted to file on 25.07.2014. As

per the order on Crl.M.A.No.4711 of 2014, the sentence

imposed on the appellant was suspended and he was granted

bail on the conditions stipulated therein.

5. Heard the learned counsel appearing for the

appellant and the learned Public Prosecutor.

Crl.Appeal No.711 of 2014

6. The learned Public Prosecutor maintains that on the

strength of the oral testimony of PWs.1, 4, 5 and 6 and

Exts.P1 to P11, the guilt of the accused was satisfactorily

proved. The learned counsel appearing for the appellant

raised manifold grounds to assail the findings of the trial

court. It is contended that the search was not proper. There

occurred an inordinate delay in forwarding the contraband and

sample to the court. There are irregularities in the submission

of material objects before the court, namely, provisions of

Section 53A of the Abkari Act were not complied with.

Besides, the learned counsel submitted that the evidence of

PWs.1 and 6 is not free of blemishes so as to rely on it, in the

absence of independent evidence. Accordingly, the learned

counsel submits that the conviction of the appellant is illegal

and he is entitled to be acquitted.

7. PW6 deposed in detail regarding the circumstances

under which he along with his subordinates happened to

search the residential premises of the appellant. It was on

getting reliable information, that he along with his colleagues

Crl.Appeal No.711 of 2014

went to the house of the accused. They took PWs.2 and 3

along with them to the house. PW6 deposed that they found

the appellant at the lean-to of that house on its eastern side,

where the utensils for distillation of arrack were seen. The

appellant was dealing with those articles. 15 litres of wash

inside a 50-litre aluminium vessel and 1.5 litres of arrack in a

10-litre plastic can and ½ litre arrack in a 5 litre capacity

aluminium pot were found in his possession. On convincing

that those articles were arrack and wash, PW6 prepared

samples from both. After sealing and labelling, the remaining

wash was destroyed and all other articles were taken into

custody. Ext.P2 is the mahazar prepared for the seizure of the

said articles. In order to arrest the appellant, PW6 prepared

Ext.P1 arrest memo. Ext.P6 inspection memo was also

prepared. PWs.2 and 3 signed Exts.P1 and P2. After coming

back to the police station, PW6 registered the crime as per

Ext.P7, First Information Report.

8. PW1 is a Civil Police Officer. He accompanied PW6,

among others, to the place of occurrence. PW1 also deposed

Crl.Appeal No.711 of 2014

in detail regarding the search, seizure and arrest. PWs 2 and

3 are residents of the same housing colony where the

appellant is residing. They stated they have acquaintance with

the appellant, and signed Ext.P1 arrest memo and Ext.P2

mahazar. But they denied having seen the search and seizure.

By admitting that they signed Exts.P1 and P2, their evidence

supports the version of PWs.1 and 6 that they reached the

house of the appellant as they claimed. Of course, their

evidence has no further use as far as the case of the

prosecution is concerned.

9. The oral testimonies of PWs.1 and 6 tally each other.

Their evidence has been corroborated by the contents of Ext.P2,

which was prepared contemporaneously to the seizure of the

contraband and the arrest of the appellant. In the absence of any

serious contradiction or inconsistency in their evidence, there is

no reason to disbelieve them. They are official witnesses and as

part of their official duty, they detected the offence and

conducted the process of search and seizure. The appellant has

no case that they have any kind of enmity towards him.

Crl.Appeal No.711 of 2014

10. The Apex Court in Karamjit Singh v. State

(Delhi Administration) [ AIR 2003 SC 1311] held that,-

"The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down."

In the light of the said principle of law, the evidence of PWs.1

and 6 regarding the arrest and seizure has to be accepted as

true.

11. The accused was arrested and the contraband was

seized on 13.08.2010. On the same day, Ext.P7 F.I.R. reached

the Magistrate. Of course, the samples were produced before

the court on 16.08.2020; there was a delay of two days, but

the delay has been properly explained. 14th and 15th of

August, 2010 were holidays. On the very next working day,

Crl.Appeal No.711 of 2014

the samples were produced in court by the Station House

Officer of the same police station, who is none other than

PW6. In the said circumstances, there cannot be found any

missing link in the matter of production of samples before the

court. The contention of the learned counsel for the appellant

in that regard is not able to be accepted.

12. Ext.P10 is the inventory report, ExtP10(a) is the

photograph and Ext.10(b) is the compact disk. A perusal of

Ext.P10 would show that the seized articles were produced

before the authorised officer, namely, the Deputy

Commissioner of Excise, Kasaragod, and the inventory along

with certification were produced before the Judicial Magistrate

of the First Class-I, Hosdurg. The learned Magistrate duly had

certified the inventory and took a photograph of the same.

When the Magistrate certifies the correctness of the inventory

and that the articles bore the seals and labels, the certificate

issued by the Magistrate is primary evidence as provided in

sub-section (5) of Section 53A of the Abkari Act. There is

absolutely no reason to dispel it. In the circumstances, the

Crl.Appeal No.711 of 2014

contention of the learned counsel appearing for the appellant

that there was non-compliance with the provisions of Section

53A of the Abkari Act cannot be countenanced.

13. The learned counsel appearing for the appellant

placed reliance in the decision reported in Balakrishna Rai v.

State of Kerala [2020 (3) KHC 286], in order to contend

that in the light of the flaws that occurred in the procedural

compliance of Section 53A of the Abkari Act, entails discarding

the case of the prosecution. Of course, if there is a defect in

the procedure to be followed under Section 53A, the same

definitely will tell upon the credibility of the case of the

prosecution. But in this case, there occurred no procedural

infraction as far as the preparation of the inventory or

certification by the Magistrate is concerned. In the said

circumstances, the principle in the said decision does not

come in the aid of the appellant.

14. The learned counsel appearing for the appellant

also placed an unreported decision of this Court dated

02.12.2020 in Crl.R.P.No.2026 of 2013 (T.Bhaskaran v.

Crl.Appeal No.711 of 2014

State of Kerala) in order to buttress her argument that there

are violations of the procedural requirements under Section

53A and hence the prosecution of the appellant under the

provisions of the Abkari Act should fail. I found above that

there is no such procedural irregularity in this case, and

therefore, the said decision is also not of avail to the

appellant.

15. Yet another decision relied on by the appellant is

Kumaran P. v. State of Kerala & another [2016 (5) KHC

632]. In that case, this Court held that the case of the

prosecution could not be accepted for the reason that the

forwarding note as per which the samples were sent for

chemical examination contained blank spaces creating doubts

on its genuineness. No doubt, the prosecution is bound to

prove before court that the sample drawn from the

contraband seized from the possession of the accused has

been under proper custody and from such custody it was

entrusted with the Chemical Examiner. Any lapse in that

process certainly creates doubt regarding the genuineness of

Crl.Appeal No.711 of 2014

the certificate obtained from the Chemical Examiner's

Laboratory. In this case, Ext.P9 forwarding note does not

contain any such blemishes. The sample was seen duly

forwarded to the laboratory and Ext.P11 report was obtained

properly. In the light of Ext.P11, it can well be found that the

samples were arrack and wash. In the light of the said

evidence, the findings rendered by the learned Additional

Sessions Judge-I, Kasaragod, that the accused has committed

an offence under Sections 55(a) and (g) of the Abkari Act is

legal and proper. There is no reason to interfere with the

same.

16. Coming to the sentence, the learned Additional

Sessions Judge showed maximum leniency. The sentence

imposed is simple imprisonment for a period of one year and

a fine of Rs.1,00,000/- each for the offences under Sections

55(a) and 55(g) of the Abkari Act. The period of the

substantive sentence was directed to run concurrently. I do

not find any reason to interfere with the sentence. Hence, the

appeal fails and the same is dismissed.

Crl.Appeal No.711 of 2014

The appellant shall surrender before the Additional

Sessions Court-I, Kasaragod, on 08.08.2022.

Sd/-

P.G. AJITHKUMAR, JUDGE

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