Allowed

Raveendran v. State of Kerala

Kerala HC4 Dec 2013CRL.A/1039/2002

Case brief

AI extract

What is this about?

The High Court of Kerala allowed an appeal by the original appellant and impleaded legal heirs acquitted the accused in a criminal case. The High Court held that the prosecution failed to prove beyond doubt that the quantity of toddy possessed by the accused exceeded the permitted limit through clear and crystal evidence.

What did the court decide?

The appeal is allowed; the judgment of the trial court and conviction/sentence are set aside; the appellant is acquitted.

Raveendran Vs State of Kerala — Kerala HC (2013) — LawSathi Research

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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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WEDNESDAY, THE 4TH DAY OF DECEMBER 2013/13TH AGRAHAYANA, 1935

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CRL.A.No. 1039 of 2002 (E )

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AGAINST THE ORDER/JUDGMENT IN SC.No.128/2000 of 3^rd ADDITIONAL SESSIONS COURT (FAST TRACK No.I), THRISSUR DATED 30-10-2002

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APPELLANTS/ACCUSED::

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RAVEENDRAN, S/O. VELAPARAMBIL KRISHNAN, KURUVILASSERY VILLAGE, DESOM.

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Impleaded

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RAJINI RAVINDRAN, W/O.LATE RAVEENDRAN, VELAMPARAMBIL, KURUVILASSERY VILLAGE, MUKUNDAPURAM TALUK.

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BABITHA.V.R., D/O.LATE RAVEENDRAN, -DO- -DO-

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ANOOP.V.R., S/O.LATE RAVEENDRAN, -DO- -DO-

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(IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 4 AS PER ORDER IN Crl.M.Appln.No.11534/2005 DTD.12/8/2005)

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BY ADVS.SRI.V.N.ACHUTHA KURUP (SR.) SRI.BINDU SREEKUMAR SRI.K.G.RENGANATH

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RESPONDENT/COMPLAINANT::

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

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BY PUBLIC PROSECUTOR SRI.E.M.ABDUL KHADIR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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Crl.A.No.1039 of 2002

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Dated this the 04^th day of December, 2013

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JUDGMENT

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Challenging the judgment dated 30/10/2002 in

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S.C.No.128 of 2000 of the court of the 3^rd Additional Sessions Judge, (Fast Track No.I), Thrissur the sole accused therein preferred this appeal, as he is convicted and sentenced for the offence under Section 58 of the Abkari Act.

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During the pendency of the above appeal the original appellant died and consequently his legal heirs approached this Court by filing Crl.M.Appln.No.11534 of 2005 under Section 394(2) of Cr.P.C. to implead themselves as additional appellants 2 to 4 in the above appeal and to prosecute the appeal and the same was allowed by this Court by order dated 12/8/2005.

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The case of the prosecution is that the accused was found on 29/10/1997 at 6.30 P.M. at the Vadama Kodakuthukunnu Road in front of the house of one Antony in

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Crl.A.No.1039 of 2002

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Kavanadu in Mukundapuram Taluk, in possession of 3 litres of toddy in a pot and 750 ml. toddy in a plastic bottle without any licence to keep the same and thereby the accused has committed the offence punishable under Section 55(a) of the Abkari Act.

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On the above allegation, Cr.No.18 of 1997 was registered in the Mala Excise Range and on completing the investigation a formal charge was laid in the Judicial First Class Magistrate Court, Chalakkudy, from where the case was subsequently committed to the Sessions Court, wherein S.C.No.128 of 2000 was instituted and eventually transferred to the present trial court for disposal.

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When the accused appeared, after hearing the prosecution as well as the defence, a formal charge was framed against him for the offence punishable under Section 58 of the Abkari Act which, when read over and explained to the accused, he denied the same. Consequently the trial proceeded, during which Pws.1 to 5 were examined on the side

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Crl.A.No.1039 of 2002

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of the prosecution and Exts.P1 to P8 were produced and marked. MOs.1 and 2 were identified and marked as material objects. Finally the trial court found that the prosecution has succeeded in proving the possession of 3.750 litres of toddy by the accused, for which the accused has absolutely no licence and hence the same is illegal and unauthorised and thus the accused is found guilty under Section 58 of the Abkari Act and accordingly he is convicted thereunder. On such conviction the accused is sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of `1,00,000/- and in default to undergo rigorous imprisonment for three months. Set off is allowed. It is the above finding and order of conviction that are challenged at the instance of the accused therein.

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Heard Sri.V.N.Achutha Kurup, the learned Senior counsel for the appellant and Sri.E.M.Abdul Khadir, the learned Public Prosecutor for the State.

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Crl.A.No.1039 of 2002

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To prove the above allegation the prosecution has cited and examined PWs.1 to 4 out of which PWs.2 and 3 are independent witnesses, but they turned hostile towards the prosecution. PWs.1 and 4 are the official witnesses who were involved in the detection of the crime and seizure of the contraband article and arrest of the accused. When PWs.1 and 4 were examined, they have deposed in terms of the prosecution allegation and according to them, while they were on patrol duty, they saw the accused coming in their opposite direction along the Vadama Kodakuthukunnu Road in front of the house of one Antony in Kavanadu in Mukundapuram Taluk, at about 6.30 P.M. on 29/10/1997 and at that time the accused was found in possession of 3.75 litres of toddy. According to these witnesses, on seeing the excise party the accused tried to escape from the scene of crime, but he was intercepted and on inspection of the plastic pot and bottle, which was held by him, they realised the content as toddy by tasting and smelling. Thus, according to these witnesses, the accused was arrested

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Crl.A.No.1039 of 2002

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then and there and the toddy was seized after drawing sample from the plastic pot as well as bottle. According to these witnesses, the entire proceedings related to the detection of the crime, seizure of the contraband article, drawing of sample, arrest of the accused, etc., are elaborately recorded in a mahazar and thereafter they returned to the excise range office and entrusted the accused and the contraband article and the documents with PW.5. Thus, when PW.1 was examined Ext.P1 mahazar, Ext.P2 arrest memo, Ext.P2(a) endorsement on the reverse side of Ext.P2 arrest memo and Ext.P3 arrest notice, Ext.P4 labels on Mos.1 and 2 were identified by PW.1 and marked through him. PW.4 has also identified the material objects as well as the accused. PW.5 the then Excise Inspector attached to Mala Excise Range, when examined, deposed that he had received the accused as well as the material objects, samples and documents, based upon which he prepared the crime and occurrence report, a property list and a forwarding note, which are produced before

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Crl.A.No.1039 of 2002

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the court. It is also deposed by PW.5 on sending the samples for chemical analysis, he received report. Thus, when PW.5 was examined, Ext.P5 crime and occurrence report, Ext.P6 property list, Ext.P7 forwarding note and Ext.P8 chemical analysis report are marked through PW.5. It is on the basis of the above evidence and materials, the trial court convicted the appellant for the offence under Section 58 of the Abkari Act.

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The learned counsel appearing for the appellant after taking me through the evidence of PWs.1 and 4 submitted that these official witnesses did not measure the quantity of the liquid/liquor said to have been seen in MO.1 and MO.2 material objects and therefore the trial court is incorrect in its finding that the appellant was found in possession of excess quantity of toddy and therefore the consequent conviction is bad. On the other hand, the learned Public Prosecutor submitted that the evidence of PWs.1 and 4, who had occasion to physically assess the quantity, show that the quantity of liquor found in the possession of the accused was about 3.750

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Crl.A.No.1039 of 2002

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litres and therefore the trial court is correct in its finding and no interference is warranted.

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I have carefully considered the arguments of the learned counsel for the appellant and the learned Public Prosecutor and I have gone through the evidence and materials on record.

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In view of the above rival contentions and the evidence and materials on record, the only question to be considered is whether the trial court is justified in its finding and convicting the appellant. In the light of the rival contention the crucial question to be considered is whether the toddy found in possession of the appellant was exceeding the permissible quantity. In paragraph 10 of the impugned judgment the learned Judge of the trial court has found that, on the basis of this evidence, it can be held that the accused was having 3.750 litres of toddy, whereas the permitted quantity was only 2.500 litres of toddy. In order to come into the above conclusion and evasive reasoning given by the

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Crl.A.No.1039 of 2002

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learned Judge is that this is not a case of marginal difference in the quantity of the toddy possessed by the accused. PW.1 during his chief-examination it is stated that:

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“5 ല�റ � ക��ള�ന ��ഭത�ല 3 ല�റ� 750 ml. ��പ� ന�റക� ��ണകപട �ള� അല!� ക�യ�ല ഒഴ�ച� ....”

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But during the cross-examination of PW.1 he had admitted in clear terms that:-

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“ദ*�വ�� അളന� ബ.�ധ0കപട�ത��ട�ല2.”

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In case of PW.4 also he had deposed that:-

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“ദ*�വ�� അളന� ബന�ക��ല2.”

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It is beyond dispute that, during the relevant point of

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time 2.500 litres of toddy are permitted to be possessed by the consumers. If that be so, it is incumbent upon the prosecution by adducing clear and crystal evidence to show that the quantity of toddy, which found in possession of the accused, was in excess of the permitted quantity. In the present case PWs.1 and 4 have admitted that they did not measure the

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Crl.A.No.1039 of 2002

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quantity of the liquid/liquor found in MOs.1 and 2. The mere claim of PWs.1 and 4 that the appellant was found in possession of excess quantity in the absence of any positive evidence cannot be counted for convicting the appellant warranting severe punishment. In this juncture, it is also relevant to note that, to prove the quantity of the toddy allegedly possessed by the accused/appellant, there is no independent evidence to corroborate the evidence of PWs.1 and 4 the official witnesses. Under the above circumstances, it cannot be said that the prosecution has succeeded in proving positively that the accused was found in possession of toddy in excess quantity from the limit permitted. So, Section 58 of the Abkari Act is not attracted. Even otherwise, even if it is proved that the accused was found in excess quantity of toddy the only offence attracted is under Section 63 of the Abkari Act. Since toddy is not prohibited and the possession of the same is not illegal. Hence, on that ground alone the conviction under Section 58 of the Abkari Act is bad.

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Crl.A.No.1039 of 2002

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In view of the above facts and circumstances and the evidence on record, I am unable to sustain the finding and conviction recorded by the trial court and accordingly the same are set aside.

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In the result, this appeal is allowed setting aside the judgment dated 30/10/2002 in S.C.No.128 of 2000 of the court of the 3^rd Additional Sessions Judge, Fast Track No-I, Thrissur. The appellant/accused is acquitted of all the charges and the conviction recorded against the original appellant is set aside, which follows the sentence imposed on him is liable to be set aside and accordingly the sentence of imprisonment and fine imposed on the original appellant are set aside.

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V.K.MOHANAN, JUDGE

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skj

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True copy P.A. to Judge

Raveendran v. State of Kerala

Case brief

What is this about?

What did the court decide?

Raveendran v. State of Kerala

Case brief

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What did the court decide?

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