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2024 Supreme(Online)(KER) 36543
HIGH COURT OF KERALA
P. G. Ajithkumar, J
BABY S/O.MATHAI – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A 212/2014
SRI.M.B.SANDEEP, SMT.B.DHANYA, SMT.R.PRIYA, SRI.V.VISAL AJAYAN
The court upheld the conviction for selling liquor based on reliable witness testimonies and proper evidence handling, overruling previous contrary decisions.
Headnote:(A) Code of Criminal Procedure, 1973 - Section 374(2) - Abkari Act, 1077 - Conviction for selling Indian Made Foreign Liquor (IMFL) - Appellant convicted and sentenced to six months rigorous imprisonment and a fine of Rs.1,00,000/- - Evidence of independent witnesses supported the prosecution case - The trial court's findings were upheld as there was no infirmity in the conviction. (Paras 1, 20)
(B) Evidence - The prosecution must establish that the sample reached the laboratory without tampering - The court found that the sample was duly sealed and forwarded, thus meeting the evidentiary requirements. (Paras 15, 17)
Facts of the case:
The appellant was found selling IMFL on the roadside, arrested with 400 ml. of liquor, and convicted based on witness testimonies and evidence of seizure.
Findings of Court:
The trial court's conviction was upheld due to reliable witness testimonies and proper handling of evidence.
Issues: The main issues included the legality of the arrest, the sufficiency of evidence for conviction, and the integrity of the sample handling.
Ratio Decidendi: The court ruled that the evidence was sufficient to uphold the conviction, and the presence of independent witnesses supported the prosecution's case.
Result: The appeal was dismissed.
JUDGMENT
This is an appeal against conviction filed under Section 374 (2) of the Code of Criminal Procedure, 1973 (Code). The appellant was convicted for an offence punishable under Section 55 (i) of the Abkari Act, 1077 and sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.1,00,000/- by the II Additional Sessions Judge, Thodupuzha.
2. The case of the prosecution was that at about 2.00 p.m. on 17.03.2013, the appellant was found selling Indian Made Foreign Liquor (IMFL) on the side of Kizhukkanam- Kannampady road. He was in possession of 400 ml. of IMFL and a glass.
3. On the appellant denying the charge, the prosecution has examined PWs.1 to 4 and proved Exts.P1 to P8. MOs.1 to 3 were identified. While examined under Section 313(1)(b) of the Code, he denied the incriminating circumstances appeared against him in evidence and stated that he never involved in the sale of liquor and he was a fish vendor. No defence evidence was let in.
4. PW4 was the Sub Inspector of Police, Upputhara Police Station. His evidence concerning detention of the offence, arrest of the accused and the steps he had taken concerning the investigation was believed by the trial court. Holding that the evidence of PW1, a witness to arrest and seizure, rendered sufficient support to the evidence of PW4, the trial court found the appellant guilty. He challenges the said finding in this appeal.
5. Heard the learned counsel for the appellant and the learned Senior Public Prosecutor.
6. PW1 deposed that while he was travelling in the investigation in crime No.398/2010 of Upputhara Police Station, he happened to see the appellant selling liquor. PW1 was on his way to Kizhukkanam. He saw the appellant standing on the side of the road with a bottle in one hand and a glass on the other. PW2 Anish was standing nearby. On seeing the police party, the appellant tried to run away. However, he could be apprehended. Finding that the bottle with him contained 400 ml. of liquor and he possessed the same for the purpose of sale, the contraband was seized after preparing a sample of 180 ml. He was arrested and the materials were seized on preparing Ext.P1 mahazar.
7. PW1 deposed before the court that he happened to see the police personnel apprehending the appellant. He saw the appellant holding a bottle containing liquor and a glass, and he was trying to escape on seeing the police party. It is his further version that the appellant was arrested by the police and the articles in his possession were seized. Of course, he did not state that the appellant was attempting to sell the liquor while he saw him. In that regard, he did not support the case of the prosecution. However, concerning the remaining aspects, such as seizure of contraband from the possession of the appellant and his arrest, his evidence is intact.
8. PWs.2 and 3 were also cited and examined to state about the incident. But they did not support the prosecution case. They denied having seen the police arresting the appellant. Therefore their evidence is not available to the help of the prosecution.
9. The learned counsel for the appellant would submit that the arrest and seizure suffer from various irregularities and therefore the same cannot be the basis for a conviction. Further, it is submitted that PW4 himself has conducted the investigation and submitted the final report. When the detecting officer himself conducted the investigation, that caused grave prejudice to the appellant and for that reason also the conviction of the appellant is incorrect. What PW1 and PW4 stated is regarding possession of a bottle containing 400 ml. of liquor and their evidence cannot be interpreted or understood that there was an attempt by the appellant to sell liquor. When the quantity of the liquor allegedly possessed by the appellant is only 400 ml. and it is IMFL, the prosecution itself is without any basis. Thus, it is contended that the conviction of the appellant is liable to be set a
