Sanal Kumar Vs. State of Kerala, Rep. by the P.P. - Court Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN FRIDAY, THE4H DAY OF OCTOBER201312TH ASWINA, 1935 CRL.A.No. 1374 of 2005 ---------------------- [AGAINST THE JUDGMENT

dtd.27.7.2005 IN SC9712001 of the Court of Additional Sessions Judge, Fast Track (ADHOC) No.II, Thiruvananthapuram] APPELLANT(S)/ACCUSED: -------------------- SANAL KUMAR, S/O.RAGHUNATHAN, ANU SADANAM, PLAVILA, AYILAM MUDAKKAL VILLAGE, TRIVANDRUM. BY ADVS.SRI.M.DINESH SRI.BASANT BALAJI RESPONDENT(S)/COMPLAINANT: -------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.T.SHEEBA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON0410-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J.

---------------------------------------- Crl.A.No. 1374 of 2005 ---------------------------------------- Dated this the 4th day of October, 2013

JUDGMENT

The judgment dated 27.7.2005 in S.C.No.971 of 2001 of the court of Additional Sessions Judge, Fast Track (ADHOC) No.II, Thiruvananthapuram is under challenge in this appeal, which is preferred by the sole accused in the above sessions case, as he is aggrieved by the conviction and sentence imposed against him under Sections 55(a) and (g) of the Abkari Act.

2. The prosecution case is that on getting reliable information that one Sanal Kumar, Anu Sadanam, Ayilam Plavila Desom is dealing with arrack and wash by having possession of the same, PW4 Preventive Officer along with Excise party proceeded to the spot after preparing the search memorandum. When the Excise party reached, the said Sanal Kumar was present in the house and through the search conducted in the said house, in the presence of the accused and the Crl.A.No.1374 of 2005 :-2-: witnesses, wash in a black can having the capacity of 35 litres and arrack in a white can having the capacity of 10 litres were seized. During the trial of the case, a formal charge was framed against the accused for the offences punishable under Sections 55(a) and (g) of the Abkari Act, which when read over and explained to the accused, he denied the charge and pleaded not guilty and consequently, the prosecution adduced its evidence by examining Pws.1 to 5 and produced Exts.P1 to P7. Mos.1 and 2 were identified as material objects. Finally, the trial court, rejecting the plea of the accused, held that the accused has committed the offences punishable under Sections 55(a) and (g) of the Abkari Act and accordingly, he is convicted thereunder. On such conviction, he is sentenced to undergo rigorous imprisonment for three years and to pay fine of Rupees One Lakh and in default of payment, he is directed to undergo rigorous imprisonment for six months for the offence under Section 55(a) and similarly, he is sentenced to undergo rigorous imprisonment for three years and to pay Crl.A.No.1374 of 2005 :-3-: a fine of Rupees One lakh and in default, to undergo simple imprisonment for six months for the offence under Section 55(g). It is ordered that the sentence will run concurrently and set off is allowed.

3. Heard Sri.M.Dinesh. learned counsel appearing for the appellant and Sri.M.T.Sheeba, the learned Public Prosecutor.

4. The learned counsel for the appellant vehemently submitted that the ownership and possession of house in question from where the contraband article allegedly recovered are not proved. It is also alleged that search memo is not produced and regarding the seizure of wash and destruction of remaining wash after sampling, there is no evidence. It is also the contention of the learned counsel that in the present case, the detecting officer is PW4, who was then working as Preventive Officer and was not competent as per the provisions of the Kerala Abkari Act and therefore, the entire prosecution case has to be rejected and the appellant is entitled to get an acquittal.

5. Per contra, the learned Public Prosecutor submitted that by Crl.A.No.1374 of 2005 :-4-: S.R.O.No.234/67, the Preventive Officers in the Excise Department were authorised to exercise the powers vested under Sections 31,32,34,35,38,39,53 and 59. It is also the contention of the learned Public Prosecutor that though Pws.1 and 2 turned hostile, the evidence of Pws.3 to 5 are intact and their evidence is supported by contemporary documents. Therefore, no interference is warranted.

6. In the light of the rival contentions and in view of the evidence and materials on record, the question to be considered is whether the trial court is justified and correct in convicting the appellant for the offences under Sections 55(a) and (g) of the Abkari Act. Though Pws.1 and 2, the independent witnesses, who are shown as attestors to Ext.P1 seizure mahazar, were examined, they turned hostile to the prosecution. The remaining evidence of prosecution consists of the oral evidence of Pws.3 to 5 and Exts.P1 to P7 documents. When Pws.3 and 4 were examined, they have fully supported the prosecution case. According to Pws.3 and 4, when they Crl.A.No.1374 of 2005 :-5-: were on patrol duty and when they reached near Ayilam Temple, PW4 got information that in the house of the accused viz., Sanal Kumar, there were illicit arrack and wash kept and accordingly, PW4 prepared search memo, which was sent to the court and thereafter, they proceeded to the house and when they reached in the house of the accused, the accused was present and after apprising him about the purpose of their visit, they searched the house and accordingly, they detected a black can having the capacity of 35 litres, which is filled up with liquid, which on smelling and tasting, identified as wash. It is also their evidence that near to the above can, they have also seen some liquid filled up and kept in a white can and the same is also identified as illicit arrack by smelling and tasting. They have identified Mos.1 and 2 cans respectively. They have also stated about the details of the seizure of the contraband article as well as the sample. During the examination of PW4, Ext.P1 seizure mahazar, Ext.P2 crime and occurrence report, Ext.P3 list of property, Ext.P4 Crl.A.No.1374 of 2005 :-6-: forwarding note, Ext.P5 chemical analysis report were marked through PW4. He had also identified Mos.1 and 2. PW5 when examined, Exts.P6 and P7 respectively the contradictory statements of Pws.1 and 2 were marked.

7. That being the position, the learned counsel for the appellant argued that the prosecution has failed to prove ownership and possession of the house with that of the accused and therefore, no liability can be fastened upon the appellant/accused connecting with the seizure allegedly effected on 20.5.2000. I am unable to sustain the above contention. In the present case, as disclosed by the evidence of Pws.3 and 4 and also discernible from Ext.P1 seizure mahazar, Pws.3 and 4 proceeded to the house, on the basis of the specific information received by them. So, the claim of Pws.3 and 4 as to how reached the house of PW1 is supported by contemporaneous document Ext.P1, which reached in the court without any delay. It is further relevant to note that according to Pws.3 and 4, when they reached the house in Crl.A.No.1374 of 2005 :-7-: question, the accused was present and the search was conducted in his presence. Suppose the search was conducted in the absence of the accused and the contraband articles were seized from the house, there may be some relevance and force in the submission of the learned counsel for the appellant. But, in the present case, the seizure was effected from the house in the presence of the appellant/accused. As the specific case of the prosecution is that the contraband article is seized from the possession of the appellant/accused and his presence is proved, during the time of the seizure, according to me, the absence of evidence about the house in question is immaterial especially when the above claim of the prosecution is supported by other evidence and materials.

8. Another contention taken by the learned counsel for the appellant is that the Preventive Officer viz., PW4, who detected the crime, was not having authority and empowered to effect search and seizure. The above contention goes in view of the submission made Crl.A.No.1374 of 2005 :-8-: by the learned Public Prosecutor on the basis of S.R.O.No.234/67. It is relevant to note that apart from putting simple question upon Pws.3 and 4 about the authority of the Preventive Officer, no serious attempt is made during the trial to substantiate the ground now raised before this Court. On the other hand, it is crystal clear that as on the date of occurrence in the present case, the Preventive Officers of the Excise Department are authorised to exercise all or any of the powers under Sections 31,32,34,35,38,39,53 and 59 of the Kerala Abkari Act, in view of S.R.O.No.234/67, which position is not disputed before me. So, according to me, the findings of the court below and the conviction recorded by the trial court are fully correct and legal and the challenge against the same fails.

9. As this Court is not inclined to interfere with the findings of the court below and the conviction recorded against the appellant, the learned counsel for the appellant submitted that a lenient view may be taken in the matter of sentence imposed against the appellant, which Crl.A.No.1374 of 2005 :-9-: contention requires positive consideration. While considering the facts and circumstances involved in the case, it can be seen that the prosecution has no case that the appellant is a habitual offender. According to me considering all the facts and circumstances involved in the case, the substantial sentence and the default sentence imposed against the appellant under Sections 55(a) and (g) of the Abkari Act can be modified and reduced. So, accordingly, the substantial sentence, both under Sections 55(a) and (g), are reduced and according to me, one year rigorous imprisonment and 15 days default sentence under Sections 55(a) and (g) of the Abkari Act are sufficient to meet the ends of justice. Thus, in modification of the sentence imposed by the trial court, the appellant is sentenced to undergo rigorous imprisonment for one year and to pay fine of rupees one lakh and in default, he is directed to undergo simple imprisonment for 15 days for the offence under Section 55(a) and similarly, he is sentenced to undergo rigorous imprisonment for one year and to pay fine of Crl.A.No.1374 of 2005 :-10-: Rupees one lakh and in default, he is sentenced to undergo simple imprisonment for fifteen days for the offence under Section 55(g). The modified sentence is directed to run concurrently. Set off is allowed. In the result, this appeal is dismissed confirming the conviction recorded by the trial court against the appellant for the offences under Sections 55(a) and (g) of the Abkari Act, but subject to the modification with respect to the sentence to the extent indicated above. The appellant is directed to appear before the trial court on 4.11.2013 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 directed to take coercive steps to secure the presence of the appellant and to execute the modified sentence. Crl.A.No.1374 of 2005 :-11-: The above appeal is dismissed accordingly. V.K.MOHANAN, Judge MBS/ Crl.A.No.1374 of 2005 :-12-: