Appeal against conviction filed by the accused 2 and 3 in Sessions Case No.169 of 2003 on the file of the learned Additional Sessions Judge, Thodupuzha. 1st accused was acquitted by the learned trial Judge. Case against the appellants is that they are guilty of offences under Sections 8(1) and (2) and 55(g) of the Abkari Act (in short, “the Act”).
2. Allegations raised by the prosecution are that on 29.08.2001 at about 6.50 p.m., the accused persons were found engaged in manufacturing illicit arrack. After completing the formalities, the accused were arrested and brought to the Police Station and the case was registered. On the close on investigation, a charge was filed. Learned trial Judge examined four witnesses and marked eight documents on the side of the prosecution. MOs 1 and 2 are the material objects.
3. Heard the learned counsel for the appellants and the learned Public Prosecutor.
4. PW1 is the detecting officer. On 29.08.2001, he along with Police party was conducting law and order patrol duty. At about 4.30 p.m. they reached at a place called Koovakandam Junction. At that time, they got a reliable information that manufacturing of illicit liquor was happening in the house of the 1st accused Prakash. A search memo was prepared and it was sent through a Police Constable. That is Ext.P1. Later PW1 and party went on foot to the house where the said Prakash was residing. After eliciting his identity, the house was searched. But, nothing could be found out. On questioning him, it was revealed that the appellants, who are related to him, were engaged in manufacture of illicit arrack. They were distilling arrack in an open place about 250 metres away from the house of Prakash. They had made a country hearth and placed three pots specially designed for illicit distillation. Wash was also recovered from the place of occurrence. On inspection it was revealed that they have started distillation of arrack. The appellants were arrested. MO1 is the can which was recovered from the place. It contained illicit arrack. Two bottles of 180 ml. each were taken as samples. It was properly sealed and labelled. The utensils used for distillation were also recovered. After completing the formalities from the place of detection, the accused and the articles along with the contraband were moved to the Police Station and the case was registered. PW1 in chief-examination itself clearly stated that he produced the property before the court only on 06.09.2001 because the office of the court was closed in connection with Onam holidays. It is his definite version that the contraband was kept in his safe custody till it was produced before the court. This aspect in the evidence of PW1 was not at all challenged in cross-examination. In cross-examination, PW1 further deposed that there is a property room in the Police Station and it is a safe room with strong lock. Then the learned counsel for the appellants contended that the explanation given by PW1 for the delay is not satisfactory. It is settled law that the search and seizure of the contraband should be reported to the court forthwith as per Section 102(3) of the Code of Criminal Procedure (in short, “Cr.P.C.”). This Court in Ravi v. State of Kerala (2011 (3) KLT 353) had considered this issue and found that in the absence of any proper explanation, the delay in producing the contraband before the court may be fatal to the prosecution case because there is a possibility of mixing up or tampering with the contraband allegedly recovered from the accused. But, in this case, I find that PW1 has clearly explained the reason for the delay as well as the fact that the contraband was in his safe custody until it was produced before the court. This version of PW1 was not subjected to cross-examination. Therefore, the principle in the above decision has no application in this case.
5. PWs 2 and 3 are the independent witnesses cited to prove the search and seizure. Both of them refused to support the prosecution case. They admitted their signatures on Ext.P3 mahazar. They also admitted that both of them signed from a public road near the place of detection.
According to them, they did not see the actual seizure of contraband from the appellants. In spite of the fact that PWs 2 and 3 did not completely support the prosecution case, materials brought out at the time of examination would show that PW1 had effected detection at the time and place as alleged. Learned counsel for the appellants contended that absence of independent witnesses for corroborating the testimony of PW1 is a vital flaw in the prosecution case. I am unable to agree with this contention. Evidence of PW1 gets support from the testimony of PWs 2 and 3 to the effect that there was a search and seizure. It is the golden rule of appreciation of evidence that the evidence should be weighed and not counted. I find no infirmity in the evidence of PW1 and it remains credible and acceptable in spite of cross-examination.
6. PW4 is the investigating officer. After completion of investigation, he filed a charge sheet.
7. From the totality of evidence adduced in this case, I find that the court below is correct in finding that the accused persons were engaged in manufacture of illicit arrack as alleged. Therefore, the conviction of appellants/accused 2 and 3 is legally correct. I confirm it.
8. Learned counsel for the appellants submitted that the court below imposed harsh punishment on the appellants. The trial court directed both the appellants to undergo rigorous imprisonment for six months each and pay a fine of `1,00,000/- each, which is the statutory minimum. I find that the sentence can be modified in the following manner.
In the result, the appeal is party allowed. Conviction of the appellants under Sections 8(1) and (2) and 55(g) of the Abkari Act is confirmed. Each appellant shall undergo rigorous imprisonment for a period of three months and pay a fine of `1,00,000/- (Rupees one lakh only). In default of payment of fine, each appellant shall undergo simple imprisonment for a further period of three months. They are entitled to get the benefit of set off under Section 428 Cr.P.C. The trial court shall take urgent steps to execute the sentence.
All pending interlocutory applications will stand dismissed.
A. HARIPRASAD, JUDGE.
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