Govindan Vs. State of Kerala - Court Judgment

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. 1441 of 2003 ( ) --------------------------- AGAINST THE JUDGMENT

IN SC742001 of ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC), FAST TRACK COURT-I, MANJERI DATED0707-2003 APPELLANT(S)/ACCUSED: ---------------------- GOVINDAN, S/O.KARAPPU, THIKKOTTIL, ASHAKATH HOUSE, VETTOM AMSOM, KANOOR DESOM, TIRUR TALUK. BY ADV. SRI.T.KRISHNANUNNI (SR.) RESPONDENT(S)/COMPLAINANT: ---------------------------- STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.T.Y.LALIZA 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.1441 of 2003 ------------------------------- Dated this the 9th day of January, 2014.

JUDGMENT

The sole accused in S.C.No.74/03 of the court of Additional District and Sessions Judge (Ad hoc) Fast Track court-1, Manjeri, is the appellant as he is aggrieved by the judgment dated 7.7.2003 in the above case, since he is convicted and sentenced for the offence under sections 55 (a) and 8(1) of the Abkari Act.

2. The prosecution case is that at about 4 p.m. on 14.5.1999, the accused was found in possession of 4.75 ltrs of illicit arrack in a white can having 5 ltr. capacity at Vettem in contravention of the provisions of the Abkari Act and therefore he has committed the offence punishable under sections 55(a) and 8(1) of the Abkari Act. With the above allegation, Crime No.2/99 was registered in the Excise Range Office, Tirur, and on completing the Crl.A.No.1441 of 2003 2 investigation, a report was filed, based upon which, C.P.No.53/00 was instituted in the court of Judicial First Class Magistrate-Tirur, and the learned Magistrate subsequently committed the case to the Sessions court, wherein S.C.No.74/01 is instituted. Initially, when the case was made over to the court of Assistant Sessions Judge at Tirur and when the accused appeared in that court, a formal charge was framed against him for the offence punishable under sections 55(a) and 8(1) of the Abkari Act and he denied the said charge when the same read over and explained to him. Thereafter, the case was withdrawn from that court and transferred to the present trial court for disposal. Thus when the accused appeared, the prosecution adduced its evidence by examining Pws.1 to 7 and producing Exts.P1 to P8 documents. M.O.1 plastic can is also identified as material objects. The trial court finally found that the accused is found guilty under the above charge and he is convicted thereunder. On such conviction, the appellant/accused is sentenced to undergo Crl.A.No.1441 of 2003 3 rigorous imprisonment for 3 years and to pay a fine of `1 lakh and on default he is directed to undergo simple imprisonment for 1 year. It is the above finding and order of conviction 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. Pws.1 and 2 are the officials who involved in the detection of the crime and seizure of the contraband article and arrest of the accused. Besides, Pws.1 and 2, the prosecution has also examined Pws.3 and 6, the independent witnesses to prove the occurrence, but PW3 turned hostile towards the prosecution. Pws.1 and 2, who are respectively the then Excise Inspector and Excise Guard attached to Tirur Excise Range, had deposed fully in terms of the prosecution allegation. According to these witnesses, while they were on patrol duty around Vettem, they found the accused holding M.O.1 can in a path way, passing through a coconut garden on the eastern side of Crl.A.No.1441 of 2003 4 the house of one Govindan and on seeing the party, the accused got perplexed and tried to escape, but he was intercepted and M.O.1 can was inspected and found a liquid, which is identified as illicit arrack by smelling and tasting. Thus according to these witnesses, the accused was arrested then and there, and the contraband article was seized and samples were drawn from the illicit arrack contained in the can. The total quantity that contained in M.O.1 can was 4.750 ltr. of arrack. According to these witnesses, the entire proceedings recorded in a mahazar prepared at the spot and the proceedings towards drawing of the sample and arrest of the accused are recorded in the mahazar. According to these witnesses, on completing the proceedings, they returned to the Excise Range Office and entrusted the accused, the contraband article, the samples and the records with the Range Officer in that excise range. Thus when PW1 is examined, Ext.P1 arrest memo, Ext.P2 seizure mahazar and Ext.P3 occurrence report are marked through him. As I indicated earlier, PW3-the Crl.A.No.1441 of 2003 5 independent witnesses examined in this case turned hostile, and thus the contradictory portion of his 161 statement is marked as Ext.P4. PW4 is the then Range Officer of Tirur Excise Range who received the material objects, records along with the accused and according to him, thereafter he prepared an occurrence report and forwarding note to send the sample for chemical analysis and also prepared thondi list to produce the entire material objects and samples before court, and thus obtained a chemical analysis report. Thus when PW4 is examined, Ext.P5 occurrence report, Ext.P6 forwarding note and Ext.P7 thondi list are marked through him. PW5 is the Officer who undertook the investigation and finally laid the charge. When PW5 is examined, Ext.P8 chemical analysis report is marked through him. PW6 is another independent witness, examined in this case to prove the seizure of the contraband article from the possession of the accused. When PW6 is examined, he deposed fully in terms of the prosecution allegation and he had admitted his signature in Crl.A.No.1441 of 2003 6 Ext.P2 seizure mahazar. Further, the investigation in the present case was conducted by PW7 and when he was examined, Ext.P4 contradiction was put to him. It was PW5 who finally laid the charge. It is on the basis of the above evidence and materials, the trial court found the accused as guilty and sentenced him.

5. The learned counsel for the appellant submitted that Ext.P3 occurrence report reached in the court only on 15.5.1999. It is also the contention of the learned counsel that M.O.1 can contains 2 labels and though PW1 deposed about the only one label affixed by him on M.O.1 at the place of occurrence, the prosecution has not explained as to how the other label affixed on M.O.1. The learned counsel for the appellant has also contended that no investigation was conducted by the prosecution to trace out the source of the illicit arrack, even though the name of one Sura, was disclosed during the investigation undertaken by them. Thus according to the learned counsel, the prosecution has miserably failed to prove its case against Crl.A.No.1441 of 2003 7 the appellant beyond reasonable doubt. On the other hand, the learned Public Prosecutor submitted that the evidence of Pws.1 and 2 who are involved in the detection of the crime is fully supported by independent evidence-PW6, though another independent evidence-PW3 turned hostile towards the prosecution. It is also the contention of the learned Public Prosecutor that the other contemporaneous documents also positively prove the case of the prosecution. According to the learned Public Prosecutor, during the examination of PW1, he has deposed that two labels were affixed on M.O.1 and he had further clarified that one label was affixed by him at the place of occurrence itself. The further deposition of PW1, that the Excise Inspector has affixed label after receiving the material objects and PW1 in his deposition had referred to the label other than the one affixed by him at the place of occurrence and therefore, according to the learned Public Prosecutor, there is no confusion or doubt in the evidence of PW1. Thus, according to the learned Public Prosecutor, Crl.A.No.1441 of 2003 8 the trial court is fully justified in convicting the appellant on the basis of the evidence of the prosecution, including the evidence of independent evidence and as such 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.

7. In the light of the above divergent submission and in view of the evidence and materials on record, the question to be considered is whether the trial court is justified in convicting the appellant. I have already referred to the evidence and materials on record. The evidence of Pws.1 and 2, the official witnesses who involved in the detection of the crime, is fully corroborated by the evidence of PW6-an independent witness. The other contemporaneous document also ensures the correctness of the prosecution allegation. The crime was detected by PW1 and party at about 4. p.m. on 14.5.1999 and on the Crl.A.No.1441 of 2003 9 next day, Ext.P3 occurrence report has reached in the court and therefore according to me, there is no delay. The other contention advanced by the learned counsel for the appellant is about the labels found on M.O.1. During the cross examination of PW1 he had stated that, " M.O.1- . M.O.1- labels . , , label . Excise Inspector . Sticker Ext.P2- . " During the chief examination of PW1, he has stated towards the last portion of his chief examination that, "Range Inspector- . " From the evidence of PW1 and as per the prosecution allegation itself it is crystal clear that, the seizure was effected by PW1 and from the evidence of PW1 it is further clear that he had affixed a label on M.O.1 at the place of occurrence. But he had also admitted that there were two labels. Out of the two labels affixed on M.O.1, he had deposed that one Crl.A.No.1441 of 2003 10 label was affixed by him on M.O.1 at the spot itself. On a reading of the entire deposition of PW1, it can be safely inferred that the second label mentioned by him might have been affixed in the excise range office after receiving the material objects from PW1, who entrusted the same with PW4, particularly, when he clarified that he had affixed only one label, that too done at the place of occurrence. So, according to me, there is no confusion at all. Affixing labels and getting signatures etc. are only to show that the seizure was effected properly and there was no room for tampering the sample and the material object. The evidence of PW1 positively shows that he had affixed labels on M.O.1 which contain the signatures of requisite parties. That portion of evidence of PW1 itself is sufficient to ensure the correctness of the prosecution allegation and the factum of seizure of contraband article from the possession of the accused. On a reading of the above evidence of PW1, any prudent man can come into a definite conclusion that the second label referred to by PW1 was Crl.A.No.1441 of 2003 11 affixed in the Excise Range Office on receiving M.O.1 from PW1. It is true that, it is came out on record that the accused got the illicit arrack from one Sura and the prosecution has not conducted any investigation to book the above named person and to trace out the real source of the illicit arrack. Of course, the above fault on the part of the prosecution cannot be ignored or justified. It was incumbent upon the prosecution to trace out the source of the illicit arrack, but such a failure, according to me, is not a ground to throw away the entire prosecution case, which otherwise stand proved against the appellant in the light of the evidence of the official witnesses, which further corroborated from the evidence of independent witness- PW6. So, the failure on the part of the prosecution to conduct the investigation to trace out the source is not a ground to reject the prosecution case. Therefore, the contentions raised by the learned counsel are unsustainable and liable to be rejected and I do so.

8. In the light of the above discussion and in view of Crl.A.No.1441 of 2003 12 the evidence and materials referred to above, I am of the view that, the trial court is fully justified in its finding and convicting the appellant for the offence under Sections 55 (a) and 8(1) of the Abkari Act and I find no reason 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 50 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 4.75 ltrs. of illicit arrack. In the light of the above mitigating circumstances, according to me, the substantial sentence imposed as well as the default sentence require Crl.A.No.1441 of 2003 13 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 against the appellant for the offence under sections 55(a) and 8(1) of the Abkari Act, but subject to the modification with respect to the sentence to the extent indicated above. The bail bond if any executed by the appellant stand cancelled and Crl.A.No.1441 of 2003 14 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. It is made clear that, in case the appellant/accused had already deposited any amount in terms of the order dated 25.8.2003 of this Court in Crl.M.A.No.8628/03 in the above appeal, the same shall be released to the appellant/accused forthwith, on moving an application in this regard. Sd/- V.K.MOHANAN, Judge ami/ //True copy// P.A. to Judge