Dismissed

Babu v. the State of Kerala

Kerala HC6 Nov 2013CRL.A/1082/2005

Case brief

AI extract

What is this about?

This appeal challenged convictions and sentence for illegal transport of brandy under the Kerala Abkari Act. The High Court upheld the conviction but modified the sentence to six months rigorous imprisonment and reduced the default simple imprisonment to 15 days.

What did the court decide?

Appellant sentenced to 6 months rigorous imprisonment and 15 days simple imprisonment as default; appeal dismissed subject to sentence modification.

Babu Vs the State of Kerala — Cheque Dishonour | Kerala HC (2013)

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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 6TH DAY OF NOVEMBER 2013/15TH KARTHIKA, 1935

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CRL.A.No. 1082 of 2005 ( )

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AGAINST THE JUDGMENT IN SC 225/2002 of ADDL.DISTRICT & SESSIONS JUDGE, FAST TRACK (ADHOC)-II, KOZHIKODE, DATED 02-06-2005

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APPELLANT(S)/ACCUSED:: ----------------------

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BABU, PUTHUKUDY KANDI, VATAKARA. BY ADVS.SRI.PULIKOOL ABOOBACKER SRI.MANSOOR.B.H.

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RESPONDENT(S)/COMPLAINANT:: ---------------------------

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

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BY PUBLIC PROSECUTOR ADV.SRI.N.SURESH

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-11-2013, 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.1082 of 2005

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Dated this the 6^th day of November, 2013.

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J U D G M E N T

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Challenging the conviction and sentence for the offence under section 55(a) of Kerala Abkari Act and Rule 9 of Foreign Liquor Rules imposed on the appellant/accused by judgment dated 2.6.2005 in S.C.No.225/02 of the court of Additional District and Sessions Judge Fast Track (Ad hoc-II), Kozhikode, the accused therein preferred this appeal.

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The prosecution case is that on 12.3.1999 at about 12.30 p.m. the accused was found transporting 6 bottles of Golconda brandy of 375 ml. each in a paper packet, on the back seat of a bus bearing registration No.KL-11-D-2223 in the Kannur-Thrissur Wafala class in front of Azhiyur check post and thus the appellant/accused committed the offence punishable under the above provisions.

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Crl.A.No.1082 of 2005

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On the above allegation, C.R.No.2/99 was registered

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in the Vatakara Excise Range for the offence punishable under section 55(a) of the Abkari Act and Rule 9 of Foreign Liquor Rules and a formal report was filed based upon which S.C.No.225/02 was instituted and stood for trial. When the appellant/accused appeared before the trial court, a formal charge was framed against him for the offences punishable under Section 55(a) of Kerala Abkari Act and Rule 9 of Foreign Liquor Rules and he denied the charge when the same read over and explained to him and consequently the prosecution adduced its evidence by examining Pws.1 to 4 and produced Exts.P1 to P7 documents. M.Os.1 and 2 were also marked as material objects. From the side of the defence, though no document is produced, DW1 was examined. The trial court finally found that the prosecution has proved the case against the appellant/accused beyond reasonable doubt and accordingly found that the appellant/accused is guilty under section 55(a) of the Abkari Act and Rule 9 of Foreign Liquor

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Rules and accordingly convicted thereunder. On such conviction, though no separate sentence was awarded under Rule 9 of Foreign Liquor Rules, the appellant/accused was sentenced to undergo rigorous imprisonment for 1 ½ years and to pay the fine of `1 lakh and in default of payment of fine, he is directed to undergo simple imprisonment for 3 months for the offence under section 55 (a) of the Kerala Abkari Act. Set off was allowed. It is the above finding, order of conviction and sentence that are challenged in this appeal.

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Heard Adv.Sri.Pulikool Aboobacker, learned counsel for the appellant and Adv.Sri.N.Suresh, learned Public Prosecutor for the State.

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In the present case, one Mr.Krishnan who was cited as charge witness no.1 is the Excise Official who detected the crime and seized the contraband article and arrested the appellant/accused. As the said officer had expired at the time of the trial, the prosecution very much relied and stressed upon the evidence of PW1 who was then

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working as Preventive Officer and who was one among the raiding party and was on special duty along with other Excise Officials in the check post at Azhiyur. Thus when PW1 was examined, he had stated the facts and circumstances which lead to the search and seizure of the contraband article from the possession of the appellant/ accused and his arrest. According to PW1, while he was on special duty along with other excise officials in the check post at Azhiyur and they were conducting vehicle inspection at the Azhiyur check post, they stopped the bus namely Wafala class, which was coming from Kannur and at the time of such inspection, he saw the appellant/accused who was sitting on the right hand side of the back seat of the bus and the paper packet was seen placed on his lap and entertaining doubt, the packet was opened and inspected. Thus it was found that there were 6 bottles which were having the capacity of 375 ml. each and each bottle contains Golconda brandy which were having the company seal and label. But there was no seal or sticker of Kerala

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Beverages Corporation. Thus according to PW1, after preparing the memo, the appellant/ accused was arrested and the contraband article was seized as per the mahazar. The seizure was effected by Sri.R.Mohanan, the Excise Inspector and the appellant/accused was also arrested by him. PW1 has deposed that the said R.Mohanan is no more, but he is acquainted with his signature. Thus PW1 identified the arrest memo prepared by the said Mohanan, as Ext.P1. He had also identified the signature seen in Ext.P2 seizure mahazar prepared by the said Mohanan. According to PW1, on completing the proceedings towards the seizure of the contraband article and arrest of the appellant/accused, they returned to the Excise Range office. PW1 has also identified the appellant/accused found in the box as the person who was arrested at the time of the detection of the crime. PW1 has also identified M.O.1 bottles-5 in numbers and each bottle contains labels declaring the seal of Pondicheri State. He had also identified M.O.2 newspaper which was used for packing

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M.O.1 series of bottles. PW2 is the Officer who laid the charge on completing the investigation. PW3 was the conductor of the above bus who is an attestor to Ext.P2 seizure mahazar. But when he was examined, though he admitted his signature, he denied other facts and therefore he was declared as hostile. PW4 is the Excise Inspector and he was working as Preventive Officer at Vadakara Excise Range at the relevant time. When PW4 was examined, he had deposed that on 12.3.1999, CW1 and party came in the Excise Range office with the accused as well as the material objects and he received the same. According to PW4, he prepared crime and occurrence report and prepared remand application for producing the accused and thereby the accused was produced. Thus Ext.P3 crime and occurrence report as well as Ext.P4 remand application were proved through him. PW1 has further stated that the material objects were produced by the then Preventive Officer, namely Krishnan and he is acquainted with him as well as his signature. He had stated that the properties

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were entrusted with the said Krishnan so as to produce before the court and thus it was produced before the court on 15.3.1999 and till that time it was within his custody. Ext.P5 property list is marked through him. According to PW4, the said Krishnan reported in the Excise Range office only on 15.3.1999 and that is why the delay was occurred in producing the material objects. Ext.P6 forwarding note is also marked through PW4 and accordingly the samples were sent for chemical analysis and thus obtained Ext.P7 chemical analysis report which also marked through PW4. These are the evidences and materials referred to by the learned Judge in his judgment which form basis for convicting the appellant.

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Adv.Pulikool Aboobacker, learned counsel for the appellant submitted that the learned Judge of the trial court has committed wrong in simply accepting and believing the evidence of prosecution in the absence of any independent evidence. According to the learned counsel, there is delay of 3 days in producing the material objects before the court

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and also there is delay in getting the chemical analysis report and these delays were not properly explained. So, according to the learned counsel, the findings of the court below are unsustainable and liable to be set aside. Per contra Adv.Sri.Suresh, learned Public Prosecutor submitted that the evidence on record fairly establish the role of the appellant/accused in the commission of the offence alleged against him. According to the learned Public Prosecutor, the 3days delay is properly explained and therefore no prejudice is caused to the appellant/accused. Thus according to the learned Public Prosecutor, the trial court has arrived into its own finding and convicted the appellant/ accused by accepting the prosecution evidence which are cogent and satisfactory and therefore no interference is warranted.

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I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor. I have also perused the evidence and materials on record.

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In the light of the rival contentions advanced and in view of the evidence and materials on record, the question that arose for consideration is whether the findings of the court below and the conviction recorded against the appellant are sustainable. The specific allegation of the prosecution against the appellant/accused is that he was found in possession of 6 bottles of IMFL which meant for exclusive sale in Pondicheri, while he was illegally transporting the same to the State of Kerala and thereby the appellant/accused has committed the offences charged against him. To prove the above allegation of the prosecution, particularly to prove the detection of the crime, the search of the appellant/accused and the seizure of 6 bottles IMFL from his possession and his arrest, the only evidence available is that of PW1. I have already narrated the evidence of PW1. The counsel for the appellant shows that the above sole evidence of PW1 cannot be believed in the absence of any independent evidence. According to the learned counsel, at least some of the co-

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passengers in the bus ought to have been questioned and cited and examined as independent witnesses. According to me, the above submission is untenable considering the fact that, other than PW1, to prove the seizure and arrest of the appellant/accused, the prosecution has already cited and examined an independent evidence who is none other than the conductor of the bus in question, who was examined as PW3. As usual PW3 turned hostile towards the prosecution. However, he had admitted his signature in Ext.P2 seizure mahazar. This Court had an occasion to consider such a situation in a decision reported in Abdul Rasheed Vs. State of Kerala (2008(3) KLT 150) , wherein it has held that “If testimony of official witnesses is blemishless and free from suspicion and inspires confidence hostility shown by ill-motivated independent witnesses is of no consequence.” In the present case, the defence has miserably failed to point out any contradiction or infirmities in the evidence of PW1 so as to disbelieve him. So, according to me, there is no error in the approach of the

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court below in relying upon the evidence of PW1, whose evidence is supported by contemporary evidence like Ext.P1 arrest memo and Ext.P2 seizure mahazar, in support of his finding towards the search of the appellant/accused and seizure of the contraband article from his possession and his arrest.

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It is also relevant to note that after the arrest and seizure, PW1 and CW1 returned to the Excise Range Office, Vatakara and the appellant/accused as well as the contraband article and the documents were entrusted with PW4 who consequently prepared Ext.P3 crime and occurrence report and Ext.P4 remand application, and accordingly the appellant/accused was produced before the court on the next day ie., 13.3.1999. The properties were produced before the court as per Ext.P5 property list on 15.3.1999. Of course, there is a delay of 3 days in producing the properties before the court and therefore the learned counsel for the appellant submitted that the prosecution case is highly doubtful and the court below did

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not consider the above delay which goes against the prosecution. According to me, in the present case, the seizure and arrest of the appellant/ accused is proved properly. When PW4 was examined, he had categorically stated that the properties were entrusted with one Krishnan who is no more and it was he who produced the properties before the court as per Ext.P6 forwarding note and Ext.P5 property list. According to PW4, the said Krishnan reported in that Excise Range Office only on 15.3.1999 and on his reporting, the material objects were sent to the court through him. According to me, the above explanation is quite reasonable. No single question was put to PW4 about the so called delay and nothing brought on record to discredit the version of PW4. It is also relevant to note that the defence has also failed to bring on record anything to disbelieve the case of the prosecution connected with the seizure and the sample etc. In the absence of any material defect with respect to the seizure and drawing of sample and especially when the seal on the sample was found intact

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as per Ext.P7 chemical analysis report, the evidence of prosecution can be safely accepted and acted upon.

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In the light of the above discussion and in view of the evidence and material referred to above, I am of the view that, the prosecution has successfully established the case against the appellant and I have no hesitation in approving the findings of the court below and confirming the conviction recorded by it against the appellant/accused and I do so.

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As this Court is not inclined to interfere with the findings of the court below and the conviction recorded against the appellant, the learned counsel for the appellant submitted that a lenient view may be taken in the matter of sentence. Having regard to the facts and circumstances of the case, according to me, the above submission requires positive consideration. It is relevant to note that at the time of the trial, the appellant/accused was at the age of 40 years and at the time of the alleged incident, he was only at the age of 39. The prosecution has no case that the

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appellant/accused is a habitual offender. However, it is a fact that illegal transportation of liquor from other States to the State of Kerala is frequently occurring and therefore this Court cannot ignore the increase in the number of offences of this nature. However, on a total consideration of the entire facts and circumstances of the case and the mitigating circumstances, according to me, 6 months rigorous imprisonment will be sufficient to meet the ends of justice and default sentence can be reduced into 15 days simple imprisonment, considering the decision in Sasikumar & anr. Vs. State of Kerla (2012 KHC 4713) . Thus in modification of the sentence imposed on the appellant by the trial court, the appellant is sentenced to undergo 6 months rigorous imprisonment and retaining the sentence of fine, the default sentence is modified and reduced in to 15 days simple imprisonment for the above offence. Set off is allowed with respect to the substantial sentence.

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In the result, this appeal is dismissed confirming the conviction of the appellant/accused for the offence under section 55(a) of the Abkari Act r/w Rule 9 of Foreign Liquor Rules, but subject to the modification with respect to the sentence to the extent indicated above. Accordingly, the bail bond if any executed by the appellant/accused stand cancelled. The appellant is directed to appear before the trial court on 6.12.2013 to receive the modified sentence. If there is any failure on the part of the appellant/accused in surrendering 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 modified sentence.

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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

Babu v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Babu v. the State of Kerala

Case brief

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