Allowed

Sarngatharan v. the State of Kerala

Kerala HC26 Nov 2013CRL.A/1446/2004

Case brief

AI extract

What is this about?

The High Court of Kerala affirmed the conviction of the appellant under Section 55(a) of the Abkari Act for illegal possession of arrack. While finding the prosecution evidence sufficient and confirming the conviction, the Court modified the sentence to six months simple imprisonment with a reduced fine default term as it was a first-time offender.

What did the court decide?

Appeal dismissed convicting the appellant; sentence modified to six months simple imprisonment and fine of Rs. 1 lakh with reduced default imprisonment.

Sarngatharan Vs the 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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TUESDAY, THE 26TH DAY OF NOVEMBER 2013/5TH AGRAHAYANA, 1935

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CRL.A.No. 1446 of 2004 (A)

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AGAINST THE JUDGMENT IN SC 524/2002 of ADDL.DISTRICT & SESSIONS COURT FAST TRACK-II, ALAPPUZHA, DATED 03-08-2004

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APPELLANT(S)/ACCUSED::

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SARNGATHARAN, AGED 52 YEARS, S/O. KOCHUPAPPU, THETTIKKATTIL VEEDU NALLIANIKKAL MURI, ARATTUPUZHA VILLAGE.

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BY ADV. SRI.S.SHANAVAS KHAN

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RESPONDENT(S)/COMPLAINANT::

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THE STATE OF KERALA, REPRESENTED BY THE PUBLIC 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 26-11-2013, 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.1446 of 2004

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Dated this the 26^th day of November, 2013.

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The appellant is the accused in S.C.No.524/02 of

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the court of Additional Sessions Judge, Fast Track Court-II, Alappuzha. The challenge in this appeal is against the judgment dated 3.8.2004 in the above sessions case, as he is convicted and sentenced for the offence under Section 55(a) of the Kerala Abkari Act.

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The case of the prosecution is that on 22.12.2000 at about 9.30 a.m., the accused was found transporting and possessing 4 ltrs. of arrack in a plastic can in the road in front of Nallanickal Service Co-operative Society at Arattupuzha village and therefore the accused has committed the offence punishable under section 55(a) of the Abkari Act. The above case of the prosecution was seen accepted by the court of Additional Sessions Judge,

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Crl.A.No.1446 of 2004

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Fast Track court-II, Alappuzha, and the learned Judge by his judgment dated 3.8.2004 in the above Sessions case has convicted and sentenced the accused. It is the said accused who preferred this appeal.

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To prove the above allegation, Pws.1 to 4 were examined from the side of the prosecution and also produced and marked Exts.P1 to P5. Besides the above, M.O.1 can is identified as material object. No defence evidence whatsoever adduced from the side of the defence. As I indicated earlier, the trial court has finally accepted the above case of the prosecution, since, according to the court below, the prosecution has succeeded in proving the above allegation. Accordingly, the accused is found guilty of the offence under section 55(a) and he is convicted thereunder. On such conviction, he is sentenced to undergo one year rigorous imprisonment and to pay a fine of `1 lakh and in default, he is directed to undergo rigorous imprisonment for 3 months. Set off is allowed. It is the above finding, order of conviction and sentence that are

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Crl.A.No.1446 of 2004

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challenged in this appeal.

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I have heard Adv.Sri.S.Shanavas Khan, the learned counsel for the appellant and Adv.Sri.N.Suresh, the learned Public Prosecutor for the State.

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Though, altogether four witnesses were examined by the prosecution, PW3 who is an independent witness and attestor to Ext.P1 seizure mahazar, has turned hostile. Pws.1 and 2 were working as Preventive Officers attached to Alappuzha Enforcement and Anti Narcotic Cell Special Squad at that time, who are cited and examined by the prosecution to prove the detection, the seizure of the contraband article and arrest of the accused. When Pws.1 and 2 were examined, they have deposed strictly in terms of the prosecution allegation and according to them, while they were on patrol duty and when they reached at about 9.30 a.m. on 22.12.2000 in front of Nallanickal Service Cooperative Society at Arattupuzha village, they saw the accused coming in their opposite direction holding M.O.1 can and they intercepted the accused and on examination

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of the content of the can by smelling and tasting, they realised it as illicit arrack. Consequently, the accused was arrested and the contraband article was seized and samples were drawn from the contraband article. According to them, the arrest was intimated in the house of the accused. It is the further case of the witnesses that after completing the proceedings of arrest and seizure of the contraband article, they reached in the excise Range Office at Karthikappally, where the accused as well as the contraband article were entrusted with. Thus when PW1 was examined, Exts.P1 seizure mahazar and P2 arrest notice prepared by him are identified and proved through him. He had also identified M.O.1 plastic can. PW2 also deposed in tune with the deposition of PW1. As I indicated earlier, though an independent witness was cited and examined as PW3, he turned hostile towards the prosecution. It was PW4 who registered Ext.P3 crime and occurrence report and he had also prepared Ext.P5 property list and thus produced the contraband article as

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Crl.A.No.1446 of 2004

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well as the sample before the court. He had also deposed that he had prepared forwarding note and filed before the court though the same is not marked. Thus according to PW4, Ext.P4 chemical analysis report was obtained. Accordingly, on completing the investigation, PW4 laid the charge before the court. It is on the basis of the above evidence and materials, the trial court entered into its finding and convicted the appellant.

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Learned counsel appearing for the appellant strenuously submitted that there is serious contradiction in the evidence of Pws.1 and 2 and PW4 who are the official witnesses and therefore it is not safe to convict the appellant, particularly, in the absence of any independent evidence. It is pointed out by the learned counsel that about the sealing of the can, there is no consistency in the evidence of Pws.1 and 2. It is also pointed out by the learned counsel that, though Pws.1 and 2 had stated that they had produced the accused as well as the contraband article before the Excise Range Office, against the above

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version of Pws.1 and 2, PW4 has deposed that he received the same. Thus, according to the learned counsel, the above contradiction and infirmities in the evidence would go against the prosecution and therefore the trial court is not correct in its finding. Per contra, the learned Public Prosecutor submitted that the infirmities or the contradictions pointed out by the learned counsel for the appellant have no bearing, as the same are not sufficient to discard the prosecution allegation and other evidence and materials. Therefore, according to the learned Public Prosecutor, the trial court is fully justified in its finding.

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

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In the light of the above contentions, the only question to be considered is whether the trial court is

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justified in its finding and convicting the appellant. In the light of the evidence and materials on record, it can be seen

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that the evidence of Pws.1 and 2 about the occurrence, including the detection of the crime and seizure of the contraband article and arrest of the accused, are intact and though they were subjected for cross examination, nothing brought on record to discredit their version with respect to the above facts. It is further relevant to note that on the same date itself, the accused as well as the contraband article were produced before the Excise Range Office at Karthikappally and in turn, the properties, including the material objects as well as the samples, were produced before the court as per Ext.P5 property list on the same date itself. The endorsement contained in Ext.P5 property list shows that the learned Magistrate has accepted the property list and ordered to verify the properties on the same date itself. So, according to me, even if there is some discrepancies about the sealing of M.O.1, it is not sufficient to disbelieve the prosecution case. The second point raised by the learned counsel for the appellant is with respect to the discrepancies about the person with whom the material

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objects, the contraband articles and the accused were entrusted, and that point is also of no consequence, for the above reason that the properties were produced before the court on the same date itself. So, in the light of the above discussion, it can be seen that the points now raised by the learned counsel for the appellant are no way affecting the core of the prosecution case and the timely steps taken towards the investigation assure the correctness of the prosecution case and the same were accepted by the learned Judge of the trial court. Therefore, I find no reason to interfere with the findings of the court below and the conviction recorded against the appellant. Accordingly, the findings of the court below and the conviction recorded against the appellant are confirmed.

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As this Court is not inclined to interfere with the findings of the court below and the conviction recorded, 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 involved in the case,

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according to me, the above submission requires positive consideration. It appears that the accused was at the age of 51 at the time of alleged incident and he is a coolie by profession. The quantity involved is 4 ltrs. of arrack. In the light of the above mitigating circumstances, according to me, the sentence imposed by the court below requires modification. According to me, 6 months simple imprisonment will be sufficient to meet the ends of justice and while retaining the sentence to pay fine, the default sentence can be reduced into 15 days of simple imprisonment. Accordingly, in modification of the sentence imposed by the court below, the appellant is sentenced to undergo 6 months simple imprisonment and to pay fine of `1 lakh and in default of payment of fine, he is directed to undergo simple imprisonment for 15 days. Set off is allowed.

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In the result, this appeal is dismissed, confirming the conviction of the appellant for the offence under Section 55 (a) of the Abkari Act, upholding the judgment of the trial

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court, but subject to the modification with respect to the sentence to the extent indicated above. The appellant is directed to appear before the trial court on 27.12.2013 to receive the modified sentence. If there is any failure on the part of the appellant in appearing 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

Sarngatharan v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Sarngatharan v. the State of Kerala

Case brief

What is this about?

What did the court decide?

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