Appeal against conviction for transporting arrack under section 55(a) of Abkari Act dismissed. Court upheld evidence of seizure, removed doubts regarding property production delay, and confirmed conviction while reducing sentence.
Conviction and fine confirmed; sentence reduced to rigorous imprisonment for twenty months; order to execute sentence immediately.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
FRIDAY, THE 7TH DAY OF SEPTEMBER 2012/16TH BHADRA 1934
CRL.A.No. 523 of 2005 ( ) ------------------------SC.583/2004 of ADDL.SESSION COURT (ADHOC-II) KASARAGODE
APPELLANT(S)/ACCUSED::
1. P.M.BASHIR
2. DINESH KUMAR M.D.,
BY ADV. SRI.T.B.SHAJIMON
RESPONDENT(S)/COMPLAINANT::
STATE OF KERALA REP. BY THE S.H.O., BADIADKA POLICE STATION WHO IS REPRESENTED BEFORE THIS HON'BLE COURT BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.
BY ADV. PUBLIC PROSECUTOR SRI.ROY THOMAS
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JJJ
N.K. BALAKRISHNAN, J.
Crl. A. No: 523 of 2005
Dated this the 7th day of September, 2012
J U D G M E N T
This appeal is directed against the conviction and sentence passed against the appellants by the Additional Sessions Judge (Ad hoc) II, Kasaragod, for the offence punishable under section 55 (a) of Abkari Act. They were sentenced to undergo rigorous imprisonment for two years and to pay Rs.1,00,000/- as fine and in default to undergo rigorous imprisonment for three months.
accepted by the court below is that the appellants were found transporting 10,000 packets of arrack of 100 ml each in a Tata Sumo having registration no: KA-21-M-7153 at a place called Swarga. PWs 1 to 6 were examined and Exts.P1 to P10 were marked. M.O.1 series – arrack packets
were also identified and marked.
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upon by the court below to find the appellants guilty.
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the vehicles, a Tata Sumo bearing registration no: KA-21-M7153 was coming towards the check post from Karnataka side. When they saw the police party, they tried to return through Swarga road. They, in fact, entered Swarga road through the check post gate which was lying open. Hence, the police party chased the Tata Sumo, overtook the vehicle and kept the police vehicle in front of the Tata Sumo. Thus, the Tata Sumo was intercepted. The 1st appellant was the person who was driving the Tata Sumo. The 2nd appellant was sitting just beside A1. When the Tata Sumo was examined there were 20 plastic sacks, each sack containing packets of arrack. The total number of packets were found to be 10,000 and each packet contained 100 ml of arrack.
the liquor packets were seized. Two samples were taken in
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two bottles of 375 ml each for which eight packets were opened. Two sample bottles were affixed with the labels. There is a detailed description of arrest of the accused and seizure of the contraband articles and Tata Sumo vehicle in the mahazar prepared. Ext. P4 is the specimen impression of the seal used to seal the articles. It is stated that they reached the police station at about 8.00 p.m. and from there Ext.P5 – F.I.R. was registered. PW2 identified the packets as M.O. Series.
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on patrol duty and that the Tata Sumo vehicle was intercepted and 10,000 packets of arrack were seized from that vehicle, would leave no doubt as to the credibility of the case projected by the prosecution. The further fact that Exts P2 and P2(a), the arrest memos and also Ext.P3 – the seizure mahazar were prepared then and there, would also lend assurance to the truthfulness of the prosecution case.
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about 8.00 p.m. It was thereafter the F.I.R. and property list were prepared. It is seen that the property list was prepared on 27.8.2002 itself. It is submitted by the learned prosecutor that since the quantity of arrack packets were 10,000 in number, it cannot be immediately taken to the court since, first of all it has to be ascertained whether those properties could be received and kept in the property room of the Court. PW2 has stated that the properties were in his custody and were produced on 31.8.2002. So, considering the huge quantity of arrack packets seized in this case, the contention that there was delay in the production of articles before court cannot come to the rescue of the accused. Not only that it cannot be said that the properties were created for the purpose of foisting a case.
It was stated that it was taken from eight packets
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mentioned earlier. Those bottles were in a sealed and labelled condition. That was also not seriously assailed. Ext. P7 is the copy of the forwarding note which contains the specimen impression of the seal. Ext. P9 is the report of the chemical examiner which shows that the samples contained 36.09% by volume of ethyl alcohol.
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also an attempt to flee from the scene and only because the police chased the vehicle, it could be intercepted. In the peculiar circumstances of the case and the way they were found transporting the liquor packets, there can be no doubt that they were jointly in possession of 10,000 packets of arrack. Therefore, the court below has rightly found the appellants guilty of the offence punishable under section 55 (a) of Abkari Act.
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The conviction of the appellants for the offence punishable under section 55(a) of Abkari Act is confirmed. While confirming the fine imposed and the default sentence awarded by the court below, the substantive sentence is reduced to rigorous imprisonment for twenty months.
The court below will execute the sentence immediately on receipt of a copy of this judgment.
Sd/N.K. BALAKRISHNAN, JUDGE
//True Copy//
P.A. to Judge
jjj
3 issues framed by the court
Whether theconviction of therepresentatives for transporting liquor packets should be set aside due to alleged lack of legal evidence and contradiction.
Whether unreasonable delay in production of seized properties affected the validity of the prosecution case.
Whether leniency should be shown in sentencing given the quantity of contraband seized.
1 provisions across 1 enactments
P.M. Bashir and Dinesh Kumar M.D.
State of Kerala
N.K. Balakrishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
