Partly allowed

Kunhuttan @ Ayyappan v. State of Kerala

Kerala HC1 Mar 2012CRL.A/40/2005

Case brief

AI extract

What is this about?

High Court of Kerala allowed the appeal partly. The court confirmed the conviction under Section 55(a) of the Abkari Act for illegal possession of illicit liquor but modified the imprisonment sentence from three years of R.I. to three months of S.I. due to the appellant's indigence and family responsibilities.

What did the court decide?

Conviction confirmed; sentence reduced from 3 years R.I. to 3 months S.I.; fine of Rs. 1 lakh retained.

Kunhuttan @ Ayyappan 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 N.K.BALAKRISHNAN

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THURSDAY, THE 1ST DAY OF MARCH 2012/11TH PHALGUNA 1933

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CRL.A.No. 40 of 2005 (A)

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-----------------------SC.NO.111/2002 of ADDITIONAL DISTRICT & SESSIONS COURT-1 (ADHOC), MANJERI

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APPELLANT/ACCUSED:

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KUNHUTTAN @ AYYAPPAN, S/O. MANGATTIL KRISHNANKUTTY, AGED 44 YEARS, EDAKKARA AMSOM, MARUTHINKADAVU DESOM, NILAMBUR TALUK.

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BY ADVS.SRI.JOSEPH SEBASTIAN PURAYIDAM SMT.MABLE.C.KURIAN

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, NILEMBUR RANGE, MALAPPURAM DISTRICT, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SMT.JASMINE.V.H

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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N.K.BALAKRISHNAN, J.

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Crl.A. No.40 of 2005

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Dated this the 1^st day of March 2012

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J U D G M E N T

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This appeal is filed challenging the conviction and sentence passed against the appellant for offence under Sec.55(a) of Abkari Act. He was sentenced to undergo R.I. for 3 years and to pay `1 lakh as fine. PW1, the Preventive Officer and other excise officials were on patrol duty on 8.4.2000 at about 12.30 PM. When they were proceeding to a road leading to irrigation bund in Edakkara amsom, Marathinkadavu desom, the accused was found carrying a plastic can having capacity of 5 litres. He was intercepted and questioned. The plastic can was examined. It contained 3 litres of liquid which when smelt and tasted was identified to be illicit liquor. He was arrested then and there. Arrest memo was prepared for that purpose. From the liquor, 180ml was taken as sample. It was packed and

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Crl.A. No.40 of 2005

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sealed. The seal affixed was 'KPP' indicating the initial and name of PW1. The can containing the residue was also packed and sealed. The labels containing the signatures of the accused, PW1 and of the witnesses were affixed on MO1 and the sample bottle. Ext.P2 seizure mahazar was prepared for the seizure of the articles which shows the details of the action taken by PW1 at the time and place stated above. Based on Ext.P2, crime and occurrence report-Ext.P6 was prepared. After conducing investigation, final report was filed.

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PW1 to PW6 were examined and Exts.P1 to P9 were marked. MO1 was also identified and marked. Learned Addl. Sessions Judge relied upon the evidence given by PW1, the Preventive Officer which was corroborated by PW6, the Excise Guard and also the contemporaneous records to find the appellant guilty.

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Learned counsel for the appellant submits that

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there is no legal evidence to sustain the conviction. The

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Crl.A. No.40 of 2005

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property clerk was not examined. The name of PW3 was not mentioned in Ext.P6 and so his evidence cannot be accepted. The evidence given by PW1, the detecting officer also cannot be believed. Learned Public Prosecutor submits that PW1 has given evidence in tune with the facts narrated in Ext.P2. The contraband and all the records were produced before the learned Magistrate on the same day which would prove that the procedure was followed by PW1 correctly and promptly. The chemical examiner's report showed that the sample contained only 34.52% by volume of ethyl alcohol and as such, the learned Public Prosecutor submits that the conviction is well merited.

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PW1 the Preventive Officer has given evidence in

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tune with the facts narrated in Ext.P2. Ext.P1 is the arrest memo and Ext.P3 is the arrest notice. Those documents and Ext.P2 would clearly show that the appellant was arrested at the time and place shown in those three documents. It is pertinent to note that the accused and

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Crl.A. No.40 of 2005

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Exts.P1 to P3 and other records were produced before the learned Magistrate on the same day. It is also important to note that in Ext.P2, the seizure mahazar, it was specifically noted that the appellant was carrying plastic can of a capacity of 5 litres which contained 3 litres of illicit liquor from which 180ml was taken as sample. It was also mentioned that the sample bottle and MO1 were affixed with labels containing the signatures of the accused, PW1 and all other witnesses. In Ext.P6 also it was noted that the sample bottle and MO1 were in sealed and labelled condition. Ext.P7 is the property list which shows that the properties were received in court on the same day ie; on 8.4.2000. It was also noted that MO1 and sample bottles were in sealed condition. Ext.P8 is the requisition of the court as per which the sample was sent to the lab for examination. Ext.P9 is the report of the chemical examiner.

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Since the properties and records were seen by the learned Magistrate on the same day, the question of

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Crl.A. No.40 of 2005

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tampering did not arise at all. The fact that the name of PW3 was not mentioned in Exts.P2 and P6 is not a reason to say that his evidence is to be disbelieved. The evidence given by PW1 itself will prove the detection of the crime as mentioned above. There was no infraction of any of the provisions. The evidence given by the prosecution was rightly accepted by the court below. I find no reason to hold otherwise. Hence, the conviction is only to be confirmed.

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Learned counsel for the appellant submits that the appellant is a poor coolie and that he has to maintain a large family and if he is sent to jail for a longer period, the entire family members would suffer and so the learned counsel submits that maximum leniency may be shown. Considering all the aspects, I find that the sentence can be modified to a certain extent.

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In the result, this Crl.A. is disposed of as stated

below :-

Crl.A. No.40 of 2005

-: 6 :-

The conviction of the appellant for the offence under Sec.55(a) of Abkari Act is confirmed. In supersession of the sentence awarded by the court below, the appellant is sentenced to undergo S.I. for three months and to pay `1 lakh as fine and in default, he will undergo S.I. for three months.

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N.K.BALAKRISHNAN, JUDGE.

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Jvt

Kunhuttan @ Ayyappan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Kunhuttan @ Ayyappan v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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