Partly allowed

Rajeev v. State of Kerala

Kerala HC7 Sept 2012CRL.A/131/2007

Case brief

AI extract

What is this about?

The High Court dismissed the criminal appeal against conviction and sentence. The court confirmed the conviction for possession of illicit arrack but reduced the prison term from one year to three months due to the appellant being a first-time offender, leaving the fine untouched.

What did the court decide?

Sentence reduced from 1 year to 3 months rigorous imprisonment; fine of Rs. 1 lakh confirmed; appeal dismissed.

Rajeev Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.K.MOHANAN

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FRIDAY, THE 7TH DAY OF SEPTEMBER 2012/16TH BHADRA 1934

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CRL.A.No. 131 of 2007 ( )

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AGAINST THE JUDGMENT IN SC.666/2005 of ADDITIONAL DISTRICT COURT (ADHOC), PALAKKAD, DTD.1.1.2007

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APPELLANT(S)/ACCUSED:

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RAJEEV, S/O.RAGHAVAN, CHAKKANCHATHUTHODI VEEDU, MANJAKKAD DESOM SHORNUR VILLAGE, OTTAPALAM TALUK.

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BY ADVS.SRI.P.VIJAYA BHANU SMT.P.MAYA

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RESPONDENT(S)/COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY PUBLLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY ADV.SMT.LALIZA T.Y., PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ami/

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V.K.MOHANAN, J.

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Crl.A.No.131 of 2007

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Dated this the 7^th day of September, 2012.

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J U D G M E N T

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By judgment dated 1.1.2007 in S.C.No.666 of 2005, of the court of Additional Sessions Judge (Fast Track courtI)-Palakkad, the appellant herein is convicted under section 8(2) of the Abkari Act and sentenced him to undergo rigorous imprisonment for 1 year and to pay fine of `1 lakh and in default, he is directed to undergo rigorous imprisonment for 3 months. The challenge in this appeal is against the above judgment, conviction and sentence.

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The case of the prosecution is that at 4 p.m. on 9.12.1998, the accused was found carrying 8 litres of coloured arrack in a can and 900 ml. of coloured arrack in 5 bottles in a big shopper at Manjakkad ring-road junction in Shornur-Vadanamkurissi road in Shornur Municipality in Ottapalam Taluk. On the basis of the above allegation,

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crime no.28/98 is registered in the Excise Range office, Pattambi, and on completing the investigation, a report was filed based upon which S.C.No.666 of 2005 was instituted. When the accused appeared, after hearing the prosecution as well as the defence, a formal charge was framed against the accused for the said offence and when the said charge read over and explained to the accused, he denied the same and pleaded not guilty. Consequently, the prosecution adduced its evidence by examining Pws.1 to 4 and produced Exts.P1 to P6. M.Os.1 to 3 material objects were also identified and marked. Finally, the trial court has found that the prosecution has succeeded in proving its allegation against the accused and consequently the appellant is convicted for the offence charged against the accused and accordingly the above sentence is imposed.

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I have heard Sri.P.Vijaya Bhanu learned counsel for the appellant and Smt.Laliza T.Y., learned Public Prosecutor for the State.

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Crl.A.No.131 of 2007

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Out of the four witnesses examined by the prosecution, PW3 who is the sole independent witness, turned hostile towards the prosecution. Therefore, the prosecution in order to substantiate its allegation, had mainly depends upon PW1 who is the Detecting Officer and PW2, the then Preventive officer attached to the Excise Range office, Pattambi, who accompanied PW1 at the time of the detection of the offences. PW4 is the Investigating Officer who undertook the investigation and finally laid the charge. So the evidence of Pws.1 and 2 are the main evidences relied on by the prosecution to buttress its allegation. When Pws.1 and 2 were examined, they deposed in terms strictly in accordance with the terms of the prosecution allegation. According to them, at about 4 p.m. on 9.12.1998, while PW1 and party were on patrol duty, found the accused coming with a big shopper in his possession at Manjakkad ring-road junction in ShornurVadanamkurissi road. According to PW1, he obtained the

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big shopper from the accused and verified the same and on such inspection, he had seen a can of 8 litres of arrack and 5 bottles of 180 ml. arrack in each bottle. According to him, he took one sample of 300 ml. from the contents of the can and two arrack bottles as samples. PW1 has also deposed that on completing the seizure, himself and party proceeded to the Excise Range Office and registered crime and occurrence report, and produced the properties and the accused in the court after preparing necessary documents. He had also deposed that the accused was arrested from the spot. According to PW1, the entire proceedings which taken place in the presence of independent witness, were recorded in a mahazar. Thus when PW1 was examined, Ext.P1 seizure mahazar, Ext.P2 arrest memo, Ext.P3 crime and occurrence report, Ext.P4 forwarding note, Ext.P5 chemical analysis report were marked through him. PW1 has also identified M.O.1 can, M.O.2 (3 bottles) and M.O.3 big shopper. When PW2 was examined, he has also

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Crl.A.No.131 of 2007

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deposed in tune with the deposition of PW1. When PW4 was examined, he deposed that he had undertaken the investigation and he prepared Ext.P6 scene mahazar. He had also stated that he had questioned the witness and finally laid the charge. As I indicated earlier, though the prosecution has got examined PW3 as an independent witness, he turned hostile to the prosecution. These are the evidences and materials available on record, which referred to by the learned Judge of the trial court.

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Learned counsel for the appellant vehemently submitted that the prosecution has miserably failed to prove the exact place of occurrence and the seizure effected, and the evidence on record in this respect is contradictory in nature. The other point raised by the counsel is that there is no reliable evidence to show that Ext.P6 chemical analysis report is on the basis of the sample drawn from the properties, allegedly seized from the possession of the appellant. It is also the case of the counsel that though the

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offence allegedly detected on 9.12.1998, the witnesses were questioned only during the year 2004, ie., after 6 years from the date of the alleged offence. So according to the learned counsel, the investigation is not proper and tainted due to the above facts and consequently, the conviction and sentence imposed on the appellant are liable to be set aside. 6. On the other hand, learned Public Prosecutor submitted that the evidence of Pws.1 and 2 are free of any doubt and contradiction and infirmities, and therefore even though PW3 turned hostile, there is nothing illegal in convicting the appellant based upon the evidence of Pws.1 and 2-the official witnesses. According to the learned Public Prosecutor, the trial court after considering the entire evidence and materials, and particularly the evidence of Pws.1 and 2 which are supported by the contradictory documents, found in favour of the prosecution and therefore no interference is warranted.

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I have carefully considered the arguments advanced

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Crl.A.No.131 of 2007

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by the counsel for the appellant and the learned Public Prosecutor and I have perused the judgment of the trial court. I have also scrutinised the evidence and materials on record.

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In the light of the rival contentions advanced by the counsel for the appellant and the learned Public Prosecutor, the question to be considered is whether the trial court is justified in its finding and convicting the appellant for the offence under section 8(2) of the Abkari Act and whether the sentence imposed against the appellant is justifiable and whether interference is required.

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As I indicated earlier, the main contention advanced by the counsel for the appellant is that the prosecution has not properly proved the seizure particularly the place of occurrence. In support of the above contention, after taking me through Ext.P6 scene mahazar prepared by PW4, learned counsel submitted that the evidence of Pws.1 and 2 is not tallying with the contents of Ext.P6. In the light of

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the above arguments of the learned counsel, I have scrutinised the evidence of Pws.1 and 2 in this regard and also perused Ext.P6 scene mahazar again. On a scrutiny of the evidence of Pws.1 and 2 it can be seen that they deposed that, they found the accused coming from the eastern side along Vadanamkurissi road in Shornur Municipality. They also deposed that the offence was detected and the seizure was effected on the ring-road junction. According to me, the deposition of Pws.1 and 2, with respect to the fact regarding the detection and seizure, will definitely find a place in Ext.P1 seizure mahazar. There is no contradiction between the place of occurrence, that maintained by Pws.1 and 2 in their evidence, and what recorded in Ext.P1 seizure mahazar. It is relevant to note that Ext.P6 scene mahazar was prepared by PW4-the Investigating Officer, who was not present when the seizure was effected and it is also discernible from the deposition of PW4 that he did not inspect the place of occurrence. When

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the substantial evidence of Pws.1 and 2 unerringly describes the exact place of occurrence and the seizure of the contraband article, which is supported by a contemporary document ie., Ext.P1, according to me, evenif there is slight difference on a comparison of the place of occurrence that described in Ext.P6, the same is not sufficient to disbelieve the evidence of Pws.1 and 2 and to ignore Ext.P1 seizure mahazar. Therefore, the first point raised by the learned counsel for the appellant is not factually and legally sustainable.

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Regarding the second point raised by the learned counsel for the appellant, it can be seen that Ext.P5 chemical analysis report shows that the sample bottles were reached in the lab in a full proof manner and the seals on the bags were intact and tallied with the sample seen provided, and it is also pertinent to note that, the samples, which was received as per Ext.P4-the forwarding note, reached in the lab on 20.11.1999 through one A.C.Iype, the

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Excise guard. From the endorsement contained in Ext.P4 forwarding note it can be seen that, though Ext.P4 forwarding note is dated 9.12.1998, the same was despatched from the court only on 19.11.1999. The receipt issued from the lab shows that they received the sealed bags from A.C.Iype on 20.11.1999, ie., on the next day of the despatch of the samples from the court. Neither PW4 nor Pws.1 and 2 were questioned to discredit their versions with respect to the sampling etc. In the absence of any contra evidence, I am not inclined to accept the contention raised by the learned counsel for the appellant that there is no proper sampling and against the credibility of Ext.P5 chemical analysis report.

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The 3^rd point raised by the learned counsel is with respect to the delay in questioning the prosecution witnesses. According to me, no contention can be advanced before this Court connected with the delay, since no explanation is sought from PW5-the Investigating Officer.

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Different from other criminal cases, according to me, in an offence under the Abkari Act, the main part of the investigation is completed by the seizure and arrest of the accused. Even if there is a delay, the same is no way prejudiced to the accused. In the light of the above discussion and the evidence and materials referred to above, I find no reason to interfere with the findings of the court below and the conviction recorded by it against the accused is confirmed.

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Regarding the sentence, the counsel submits that a lenient view may be taken, since the appellant has not involved in any other case.

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I have carefully considered the submissions made by the counsel for the appellant. The allegation against the appellant is a serious one and he was found in possession of about 8.9 ltrs. of illicit arrack. However, the trial court has imposed a sentence of one year rigorous imprisonment and to pay fine of `1 lakh and in default to undergo rigorous

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imprisonment for 3 more months. Admittedly, the appellant has not involved in any other similar offence and at the time of the detection of the offence, the accused was at the age of 28 and he was not married at that time. The counsel submits that after the incident, he had married and had two children and he is leading a peaceful life. Having regard to the entire facts and circumstances and in the light of the above mitigating circumstances, according to me, the substantial sentence imposed against the appellant requires modification, but the sentence of fine and the default sentence require no interference. Accordingly, instead of one year's rigorous imprisonment, the appellant is sentenced to undergo rigorous imprisonment for 3 months, confirming the sentence of fine and the default sentence awarded by the trial court. Set off is allowed under section 428 of Cr.P.C.

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In the result, this appeal is dismissed, confirming the conviction of the appellant for the offence under section

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8(1) and (2) of the Abkari Act but subject to the modification with respect to the substantial sentence alone to the extent indicated above. Accordingly, the bail bond if any executed by the appellant is cancelled and he is directed to surrender before the trial court within one month from today, ie., on or before 8.10.2012 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.

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Accordingly, the appeal is dismissed.

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Sd/- V.K.MOHANAN, Judge

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ami/

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//True copy//

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P.A. to Judge

Rajeev v. State of Kerala

Case brief

What is this about?

What did the court decide?

Rajeev v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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