Dismissed

Plavila Puthan Veettil Sunny v. State of Kerala

Kerala HC10 Sept 2012CRL.A/137/2007

Case brief

AI extract

What is this about?

Single judge of the Kerala High Court dismissed the criminal appeal filed by an appellant convicted and sentenced under Section 8(2) of the Abkari Act. The court held that reliable official testimony outweighed hostile independent witnesses and confirmed the conviction and sentence for possession of arrack.

What did the court decide?

Appeal dismissed; conviction and sentence confirmed; bail bond cancelled with direction to surrender by 31-10-2012.

Plavila Puthan Veettil Sunny Vs State of Kerala — Criminal Trial and Appeal | 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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MONDAY, THE 10TH DAY OF SEPTEMBER 2012/19TH BHADRA 1934

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CRL.A.No. 137 of 2007 ( )

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SC.1332/2004 of ADDL.SESSIONS COURT (ADHOC)-II, THALASSERY

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APPELLANT(S)/ACCUSED:

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PLAVILA PUTHAN VEETTIL SUNNY, S/O.JOHN, AGED 46 YEARS, VAYATHUR AMSOM, ARABIKKULAM, KANNUR DISTRICT.

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BY ADV. SRI.CIBI THOMAS

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RESPONDENT(S)/COMPLAINANT:

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STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY GOVERNMENT PLEADER SMT.S.HYMA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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Crl. Appeal No. 137 of 2007

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Dated this the 10^th day of September, 2012

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~ ~ ~ ~ ~ ~ ~ ~ ~ ~

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The present appeal is at the instance of the sole accused in S.C.No.1332/2004 on the file of the Court of Sessions, Thalassery. In this appeal, he challenges his conviction and sentence under Section 8(2) of the Abkari Act imposed vide judgment dated 22-12-2006 in the above Sessions Case.

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The prosecution case is that the accused was found in possession of 3 litres of arrack in a can and a glass in violation of the provisions of the Abkari Act at 8.40 AM on 23-01-2002. On the above allegation, crime No.21/2002 was registered in the Ulikkal Police Station for the offence under Section 8(2) of the Abkari Act. On completing the investigation, the police had preferred their report based on which Sessions Case No.1332/2004 was instituted and during the trial of the case, PWs 1 to 6 were examined and

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Crl.A. No.137/2007

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Exts.P1 to P7 were marked. MO1 can was also identified and marked. No evidence either oral or documentary was produced from the side of the defence. The trial court has finally found that the prosecution has succeeded in establishing its case and accordingly, the accused is convicted for the offence under Section 8(2) of the Abkari Act and on such conviction, he is sentenced to undergo simple imprisonment for a period of six months and also sentenced to pay a fine of `1,00,000/- and in default, he is directed to undergo simple imprisonment for a further period of one month. It is the above conviction and sentence are challenged in this appeal.

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I have heard Sri.Cibi Thomas, learned counsel for the appellant and Smt.S.Hyma, learned Public Prosecutor.

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To substantiate the prosecution allegation against the appellant, though the prosecution has examined PWs 1 to 6, the prosecution in order to buttress its allegation mainly depends upon the evidence of PW1, PW2 and Exts.P1 to P6.

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Crl.A. No.137/2007

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PW1 was the then Sub Inspector of Ulikkal Police Station, who detected the crime. When PW1 was examined, he had deposed that, on the basis of the information received by him, through telephone, himself and party went to the place of occurrence and when they reached on the road in front of one Manayil John's house, place known as Arabikkulam, at 8.40 AM, he saw the accused with a black can of capacity of 5 litres and a glass in a cashew garden at a distance of 50 metres from the house of John. It is the further case of PW1 that, on seeing the police party, the accused tried to escape, but, he was intercepted and on examination of the can in the presence of the independent witnesses, 3 litres of arrack was found in the can and accordingly, the accused was arrested at 8.50 AM, after preparing arrest memo and out of that arrack, sample was taken. After the seizure and arrest of the accused, according to PW1, himself and party proceeded to the Police Station and then he had prepared the FIR. PW1 has further stated that he had also prepared a property list

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Crl.A. No.137/2007

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and a forwarding note and produced the sample as well as the accused before the court. On the basis of the forwarding note, the sample was sent for chemical analysis and accordingly obtained Ext.P6 chemical analysis report, which would show that the sample contained 28.93% by volume of Ethyl Alcohol. When PW1 was examined, the prosecution has got marked Ext.P1 arrest memo, Ext.P2 seizure mahazar, Ext.P3 FIR, Ext.P4 property list, Ext.P5 forwarding note and Ext.P6 chemical analysis report. PW1 has also identified MO1 black can. When PW2, the then Head Constable attached to Ulikkal Police Station, was examined, he had also deposed in tune with the deposition of PW1, as he is the constable who accompanied PW1 at the time of seizure of the contraband article and arrest of the accused. PW5 is an attestor to Ext.P7 scene mahazar prepared by PW6 investigating officer. All the officials of the prosecution examined deposed strictly in accordance with their prosecution case.

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Crl.A. No.137/2007

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PWs 3 and 4 are the two independent witnesses,

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who are the attestors to Ext.P2 seizure mahazar. But, when

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they were examined, they turned hostile but, they have admitted their signature in Ext.P2 seizure mahazar. These are the main evidence and materials referred to by the learned Judge in support of his finding and for convicting the appellant.

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The learned counsel for the appellant strenuously submitted that the prosecution has miserably failed to adduce any independent evidence to prove its allegation and, therefore, the learned Judge of the trial court is wrong in convicting the appellant based upon the interested testimony of the officials of the prosecution viz. PWs 1, 2, 5 and 6. It is also submitted by the learned counsel that the prosecution case that the accused remained in the place of occurrence from 8 AM to 8.40 AM is unbelievable. It is also contended that prosecution has miserably failed to prove that what allegedly seized from the possession of the appellant is

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Crl.A. No.137/2007

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alcohol since the presence of Ethyl Alcohol in any other liquor cannot be ruled out. It is also contended that the prosecution has failed to prove possession of the contraband article. It is also the submission of the counsel that the sentence imposed is exorbitant and disproportionate.

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On the other hand, the learned Public Prosecutor submitted that the evidence of PWs 1, 2, 5 and 6, which are free of any contradiction or infirmities and, therefore, the learned Judge of the trial court is absolutely correct in convicting the appellant relying upon the evidence of those official prosecution witnesses, though the independent witness turned hostile. According to the learned Public Prosecutor, the finding of the court below and the conviction recorded against the appellant requires no interference.

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I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor and have perused the evidence and materials produced in Court. I have also gone through

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Crl.A. No.137/2007

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the judgment of the trial court.

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In the light of the rival contentions advanced and in the light of the evidence and materials, 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.

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The crux of the prosecution allegation is that at about 8.40 AM on 23-01-2002, the accused was found in possession of 3 litres of arrack in MO1 can at the place of occurrence covered by Ext.P7 scene mahazar. I have already referred to the evidence and materials adduced in this case. When PWs 1 and 2 were examined, they have fully supported the case of the prosecution and deposed about the detection of the crime, seizure of the contraband article and the arrest of the accused. Though these witnesses were subjected to lengthy cross examination, nothing brought on record to disbelieve their version. The first point traced by the learned counsel for the appellant is that there is no independent

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evidence to corroborate the evidence of PWs 1, 2, 5 and 6. This is not a case where the prosecution has not attempted to adduce independent evidence. The evidence of PWs 1 and 2 shows that the crime was detected and the seizure was effected and the accused was arrested from the spot in the presence of independent witnesses. The said facts have found a place in Ext.P2 seizure mahazar, which is the contemporary document prepared by PW1. The persons, who examined PWs 3 and 4 and shown in Ext.P2 are the attestors. Of course, when they are examined, they turned hostile towards the prosecution. But, no convincing explanation is forthcoming from PWs 3 and 4 as to how they affixed their signature in Ext.P2 seizure mahazar prepared by PW1 on 23-01-2002. It is also relevant to note that PWs 3 and 4 were cited as charge witnesses, whose names are shown in Ext.P2 and they were examined in the court also but they turned hostile. So, the attempt of the prosecution to adduce evidence of witnesses has purposefully defeated by PWs 3

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Crl.A. No.137/2007 : 9 :

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and 4 so as to help the accused and earlier presumption possible in the absence of any explanation forthcoming from PWs 3 and 4 as to how and under what circumstances they signed in Ext.P2. In the light of the decision of this Court in Abdul Rasheed Vs. State of Kerala [2008 (3) KLT 150], it can be seen that, in the present case also, the hostility shown by PWs 3 and 4 are due to ilmotive. Same is the position in the decision in Vikraman Vs. State of Kerala [2007 (1) KLT 1010] as well. The evidence of PWs 1, 2, 5 and 6 shows that their evidence can be acted upon freely and without any hesitation since there is nothing incredible in their evidence. As long as the evidence of the official witnesses are blemishless and free from suspicion and inspires confidence, though PWs 3 and 4 turned hostile, the prosecution case need not be disbelieved or doubted.

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Ext.P6 chemical analysis report shows that the sample contains 28.93% by volume of Ethyl Alcohol, which shows that the contraband article seized from the possession

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Crl.A. No.137/2007 : 10 :

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of the accused is arrack. As the evidence of PWs 1 and 2 are reliable and the contraband article seized from the possession of the appellant, it was for the appellant to give convincing explanation for the possession of the contraband article, in the proved facts and circumstances of the case. Considering the nature of the prosecution allegation and circumstances under which the contraband article seized from the possession of the accused, the prosecution is not bound to prove the conscious possession.

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In the light of the above discussion and evidence and materials referred to above, I find no reason to interfere with the conviction recorded by the trial court against the appellant and accordingly, I confirm the conviction recorded for the offence under Section 8(2) of the Abkari Act and imposed by the trial court.

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The learned counsel for the appellant submitted that the sentence imposed against the appellant is exorbitant and disproportionate and, therefore, a lenient view may be

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Crl.A. No.137/2007

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taken. I am unable to sustain the above submission. The

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proved fact shows that the appellant/petitioner was found in possession of 3 litres of arrack, which is prohibited in the State of Kerala. It is also relevant to note that the accused was found in possession of 3 litres of arrack in a 5 litre can and he was also found with a glass, which shows that the purpose for the possession of arrack was for sale. Still then, the trial court has imposed only a sentence of six months and a sentence of fine of `1,00,000/-, which is the minimum statutory limit and the default sentence is also fixed as only one month. Therefore, according to me, the sentence is moderate and no interference is warranted. Therefore, I confirm the sentence imposed against the appellant as well.

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In the result, the appeal is dismissed, as the same is devoid of any merit and confirming the conviction and sentence imposed against the appellant vide judgment dated 22-12-2006 in S.C.No.1332/2004 of the Court of Sessions, Thalassery.

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Crl.A. No.137/2007

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As the appeal is dismissed, confirming the conviction and sentence, the bail bond, if any, executed by the appellant is cancelled and he is directed to surrender before the trial court on or before 31-10-2012 to receive the

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sentence. If there is any failure on the part of the appellant in appearing before the trial court on the above date, 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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Sd/- (V.K.MOHANAN, JUDGE)

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aks/13/09

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// True Copy //

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PA to Judge

Plavila Puthan Veettil Sunny v. State of Kerala

Case brief

What is this about?

What did the court decide?

Plavila Puthan Veettil Sunny v. State of Kerala

Case brief

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