IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN THURSDAY, THE9H DAY OF JANUARY201419TH POUSHA, 1935 CRL.A.No. 952 of 2003 ( ) -------------------------- AGAINST THE JUDGMENT
IN SC1002000 of ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC), FAST TRACK-1, MANJERI DATED1505-2003 APPELLANT(S)/ACCUSED: ------------------------ MURALEEDHARAN, S/O.GOPALAN, KUTTIPURAM AMSOM AND DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.T.KRISHNANUNNI (SR.) RESPONDENT(S)/COMPLAINANT: ---------------------------- STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR ADV.SRI.N.SURESH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON0901-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ami/ V.K.MOHANAN, J.
------------------------------- Crl.A.No.952 of 2003 ------------------------------- Dated this the 9th day of January, 2014.
JUDGMENT
This appeal is directed against the judgment dated 15.5.2003 in S.C.No.100/00 of the court of Additional District and Sessions Judge (Ad hoc), Fast Track-1, Manjeri, and the appellant is the sole accused in the above Sessions case and his grievance is that he is convicted and sentenced for the offences under Sections 58 and 8(1) of the Abkari Act.
2. The prosecution case is that, at about 6.15 a.m. on 21.7.1998, the accused was found in possession of 4 ltrs. of illicit arrack in a black can having the capacity of 5 ltrs. and transported the same through the road on the northern side of Hotel Rivera in Kuttipuram Desom against the provisions of Kerala Abkari Act and therefore he had committed the offences punishable under Sections 58 and Crl.A.No.952 of 2003 2 8(1) of the Abkari Act. On the above allegation, Crime No.1/98 was registered in Tirur Excise Range and on completing the investigation, report was filed and consequently S.C.No.100/00 was instituted in the Sessions court, Manjeri, and eventually transferred the same to the above trial court for disposal. When the above case was pending before the court of Assistant Sessions Judge at Tirur, a formal charge was framed against the accused for the offences punishable under sections 55(a) and 8(1) of the Abkari Act, which when read over and explained to the accused, he denied the same. Thus when the accused appeared in the present trial court, the prosecution adduced its evidence by examining Pws.1 to 5 and producing Exts.P1 to P8 documents. M.O.1 can is identified as material object. The trial court finally found that the prosecution has succeeded in proving the allegation against the accused beyond reasonable doubt and accordingly he is found guilty for the charges framed Crl.A.No.952 of 2003 3 against him and he is convicted thereunder. On such conviction, the accused is sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of `1 lakh and in default, he is directed to undergo simple imprisonment for one year. It is the above finding and order of conviction and sentence that are challenged in this appeal.
3. I have heard Adv.Sri.T.Krishnanunni, the learned counsel for the appellant and Adv.Sri.N.Suresh, the learned Public Prosecutor for the State.
4. In the above case, the prosecution has examined altogether 5 witnesses, out of which, Pws.3 and 4 are independent witnesses, but they turned hostile towards the prosecution and Pws.1 and 2 are the official witnesses. As the independent witnesses turned hostile, the prosecution is very much constrained to depend upon the evidence of official witnesses who involved in the detection of the crime. Thus when Pws.1 and 2, who were then working as Excise Inspector and Excise Guard attached to Tirur Excise Crl.A.No.952 of 2003 4 Range, when examined, deposed in favour of the prosecution. These witnesses were deposed fully in terms of the prosecution allegation and according to them, when they were on patrol duty on 21.7.1998 and when they reached in a road passing through the northern side of Hotel Rivera, at about 6.15 a.m., they found the accused coming from their opposite side carrying a can and on entertaining doubt, he was intercepted and on inspection of the can, which contain a liquid, by smelling and tasting identified it as illicit arrack and therefore the accused was arrested and the contraband article was seized, including the material objects. They have deposed about the sample taken from the contraband article and according to Pws.1 and 2, the entire proceedings were elaborately recorded in a mahazar prepared at the spot and the proceedings were witnessed by the independent witnesses. According to these witnesses, after completing the proceedings of the seizure of the contraband article, drawing of the sample Crl.A.No.952 of 2003 5 and arrest of the accused, they returned to the Excise Range Office and prepared the occurrence report, property list, and produced the accused as well as the material objects before the court and during the course, forwarding note was also prepared for sending the samples for chemical analysis. Thus when PW1 was examined, Ext.P1 seizure mahazar, Ext.P2 arrest memo, Ext.P3 occurrence report, Ext.P4 property list and Ext.P5 forwarding note are marked through PW1 and he had also identified M.O.1. PW2 has also deposed in tune with the deposition of PW1. PW5 is the then Circle Inspector, Tirur, who undertook the investigation and during which, he had questioned the witnesses and on completing the investigation, he laid the charge. Thus when PW5 is examined, Exts.P6 and P7 which are respectively the contradictory portion of 161 statement of Pws.3 and 4 were marked through him. He had also identified Ext.P8 chemical analysis report. It is on the basis of the above evidence and materials, the trial Crl.A.No.952 of 2003 6 court arrived into its own finding and convicted the appellant.
5. The learned counsel for the appellant vehemently submitted that the trial court is not justified in its finding and convicting the appellant, since the evidence of Pws.1 and 2, who are official witnesses who involved in the detection of the crime, contain discrepancies and contradictions, particularly about the signatures on the labels affixed on M.O.1. According to the learned counsel, the appellant was taken into custody, 3 days prior to the date of the incident and when PW5 is examined and when suggested the said case of the defence to him, he did not deny the same. It is also the contention of the learned counsel that, Ext.P1 mahazar does not contain the specific impression of the seal which allegedly affixed by PW1 on the sample bottle and therefore the tampering of the sample cannot be ruled out. So, according to the learned counsel, the prosecution has miserably failed to prove its Crl.A.No.952 of 2003 7 case beyond reasonable doubt and therefore the appellant is entitled to get an acquittal. On the other hand, the learned Public Prosecutor submitted that the evidence of Pws.1 and 2 are intact and their evidence is supported by the contemporaneous document prepared by them. According to the learned Public Prosecutor, the minor discrepancy occurred in the evidence of Pws.1 and 2 with respect to the signature on the label affixed on M.O.1 is not sufficient to disbelieve the entire prosecution case. According to the learned Public Prosecutor, the trial court has properly considered the evidence on record and accepting the evidence adduced by the prosecution, found that the appellant/accused is guilty of the offences charged against him and therefore no interference is warranted.
6. I have carefully considered the submissions made by the learned counsel for the appellant and the learned Public Prosecutor and I have perused the evidence and materials on record. Crl.A.No.952 of 2003 8 7. In the light of the rival contentions and the evidence and materials on record, the question to be considered is whether the trial court is justified in its finding and convicting the appellant. I have also referred to the evidence and materials on record. The main contention advanced by the learned counsel for the appellant is that, about the signatures on the label affixed on M.O.1, there is discrepancy in the evidence of Pws.1 and 2. It is pointed out that when PW1 says in his deposition that, only the signature of the accused obtained in the label affixed on M.O.1, PW2 says that all the signatures of PW1- the independent witness and accused etc. are obtained and the same found a place in the label. According to me, even if such discrepancy is there, the same is not sufficient to discard the entire prosecution evidence and the allegation raised by the prosecution against the appellant. In this juncture, it is relevant to note that, except on that point, the evidence of Pws.1 and 2 are unanimous, and when the Crl.A.No.952 of 2003 9 totality of the prosecution case is considered, the same are sufficient to reinforce the prosecution allegation. In the present case, PW1 is the Detecting Officer who lead the patrolling party and who at that time was working as Excise Inspector. It was PW1 who detected the crime and prepared documents and effected the seizure and affixed the label on M.O.1 can. Of course, PW2 had accompanied PW1. When PW1 was examined, he had deposed that only the signature of the accused obtained in the label. Having regard to the authority of PW1 and the witness who involved in the detection and prepared mahazar, and other documents, according to me, due weightage has to be given to the evidence of PW1 and I am inclined to opt the evidence of PW1 about the signatures on the label of M.O.1. Another contention advanced by the learned counsel is that there is no specific seal impression on Ext.P1 seizure mahazar. Nowhere it has been made mandate that the seizure mahazar being prepared in the Abkari case should Crl.A.No.952 of 2003 10 contain the specific impression of the seal affixed on the sample bottle. If specimen seal is found a place in the mahazar prepared at the spot, it is well and good. But in the present case, it can be seen that PW1 when examined, had deposed about the seal affixed on the sample. When the samples were sent for chemical analysis and for that purpose, when Ext.P5 forwarding note filed before the court, the specimen seal is provided. I have perused the same. The said specimen seal of PW1 is counter signed by the learned Magistrate of the committal court in Ext.P5. It is after comparing and perusing the specimen seal so provided, the chemical examiner in Ext.P8, it is certified that the seal on the bottle was intact and found tallied with the sample seal provided. Thus it can be seen that even though the specimen seal impression do not find a place in Ext.P1 seizure mahazar, the other materials and evidence on record, ensure that the sample was not tampered and Ext.P8 chemical analysis report represents the sample Crl.A.No.952 of 2003 11 drawn from the contraband article seized from the possession of the appellant. Therefore, the above contention of the learned counsel also fails.
8. In the light of the above discussion and in view of the materials and evidence referred to above, I find no reason to interfere with the findings of the court below and to disturb the conviction recorded by the trial court against the appellant. Accordingly, the conviction recorded by the trial court against the appellant is confirmed.
9. As this Court is not inclined to interfere with the conviction and confirming the same, the learned counsel for the appellant submitted that, a lenient view may be taken in the matter of sentence. According to me, the above submission requires positive consideration. At the time of the alleged incident, the accused was only at the age of 30 years and he was a coolie. The prosecution has no case that the appellant/accused is a habitual offender. Afterall, the quantity involved in the present case is 4 ltrs. of arrack. Crl.A.No.952 of 2003 12 In the light of the above mitigating circumstances, according to me, the substantial sentence imposed as well as the default sentence require modification. According to me, 6 months rigorous imprisonment will be sufficient to meet the ends of justice and while confirming the sentence of fine, the default sentence can be reduced into one month simple imprisonment, in view of the decision of the Honourable reported in Sasi Kumar and another Vs. State of Kerala (2012 KHC4713. Accordingly, the appellant is sentenced to undergo rigorous imprisonment for 6 months and he is sentenced to pay a fine of `1 lakh and in default, he is directed to undergo simple imprisonment for one month. Set off is allowed under section 428 of Cr.P.C., if he had already undergone imprisonment as an under trial prisoner. In the result, this appeal is dismissed confirming the conviction recorded by the trial court for the offence under sections 58 and 8(1) of the Abkari Act, but subject to the Crl.A.No.952 of 2003 13 modification with respect to the sentence to the extent indicated above. The bail bond if any executed by the appellant stand cancelled and he is directed to appear before the trial court on 10.2.2014 to receive the modified sentence. If there is any failure on the part of the appellant in appearing before the trial court as directed above, the trial court is free to take coercive steps to secure the presence of the appellant and to execute the sentence. Sd/- V.K.MOHANAN, Judge ami/ //True copy// P.A. to Judge