High Court of Kerala Criminal Appeal against conviction for possession of illicit arrack. Confirmed conviction under Abkari Act but modified sentence due to appellant's age and single offence, reducing imprisonment to 9 months.
Conviction confirmed. Sentence modified to 9 months rigorous imprisonment and fine of `1 lakh, directed to appear on 21.12.2013.
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 V.K.MOHANAN
THURSDAY, THE 21ST DAY OF NOVEMBER 2013/30TH KARTHIKA, 1935
CRL.A.No. 2234 of 2005 ( )
AGAINST THE JUDGMENT IN SC 538/2003 of ADDL. SESSIONS COURT, FAST TRACK-1, ALAPPUZHA, DATED 23-11-2005
APPELLANT(S)/ACCUSED::
VISWAN, AGED 44 YEARS, S/O. GOPALAN, NEDUMTHANATH VEEDU, AYAPARAMBU MURI CHERUTHANA VILLAGE, ALAPPUZHA DISTRICT.
BY ADV.SRI.S.SHANAVAS KHAN
RESPONDENT(S)/COMPLAINANT::
THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR ADV.SRI.E.M.ABDUL KHADIR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ami/
V.K.MOHANAN, J.
Crl.A.No.2234 of 2005
Dated this the 21st day of November, 2013.
J U D G M E N T
Crime No.74/99 of Karthikapally Excise Range was registered on the allegation that, at about 12.30 p.m. on 8.12.1999, the accused was found in possession of 4.5 ltrs. of illicit arrack kept in three plastic bottles each having the capacity of 1.5 ltrs. and one glass. Accepting the above allegation, the trial court by judgment dated 23.11.2005 in S.C.No.538/03 of the court of Additional Sessions Judge (Fast Track) court-1, Alappuzha, found that the accused therein is guilty of the offences under sections 8(1) and (2) of the Abkari Act and accordingly he is sentenced. Challenging the above conviction and sentence, the accused therein preferred this appeal.
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the Sessions court and when the said case was made over to the court of Additional Assistant Sessions Judge, Alappuzha and when the accused appeared, a formal charge was framed against him for the offence punishable under sections 8(1) and (2) and 55(a) of the Abkari Act and the accused denied the same and pleaded not guilty. Subsequently, the case was transferred to the present trial court for disposal. Thus during the further trial of the case, Pws.1 to 4 were examined and Exts.P1 to P4 were marked from the side of the prosecution. M.Os.1 to 5 were also identified as material objects. From the side of the defence, DW1 was examined. Finally, the trial court found that the accused has committed the offence punishable under section 8(1) and (2) of the Abkari Act and accordingly he is convicted thereunder. On such conviction, he is sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of `1 lakh and in default, he is directed to undergo simple imprisonment for 6 months. Set off is allowed.
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counsel for the appellant and Adv.Sri.E.M.Abdul Khadir, the learned Public Prosecutor for the State.
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Ayaparambu Kadavu-Karichal pathway, carrying a plastic kit. According to these witnesses, on seeing the Excise party, the accused tried to escape from the place, but he was detained by the Excise Officials and the plastic kit held by him was inspected and thus on opening the same, 3 plastic bottles each having 1.5 ltrs. capacity and one glass were seen. According to Pws.1 and 3, the liquid contained in the plastic bottles were identified as illicit arrack by smelling and tasting. Thus according to these witnesses , the accused was arrested then and there. On the search of the person of the accused, an amount of `65/- was also found and the same was seized. According to Pws.1 and 3, the entire procedure adopted by PW1 towards the seizure of the contraband article, drawing of sample and arrest of the accused etc. are elaborately mentioned in the mahazar that prepared on the spot. In the mahazar prepared by PW1, it is specifically stated about the drawing of sample in three plastic bottles each having capacity of 375 ml. and the sealing of the sample bottles as well as residue bottles
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and the bottles were also affixed with labels containing signatures of the accused, the witnesses and PW1. Thus according to Pws.1 and 3, on completing the procedure towards the seizure of the contraband article and sampling and arrest of the accused, they returned to the Excise Range office at Karthikapally and the accused as well as the contraband article and the sample were entrusted with PW2. When PW1 was examined, Ext.P1 mahazar is identified and marked through him. He had also identified M.Os.1 to 3 plastic bottles each having the capacity of 1.5 ltrs., M.O.4 another plastic bottle of same nature which was empty and also M.O.5 glass. When PW2 was examined, he had deposed that he received the accused as well as the contraband article and sample from PW1 and thereafter he prepared crime and occurrence report and property list and accordingly produced the contraband article as well as the accused before the court on the next day ie., 9.12.1999. According to PW2, he prepared the forwarding note and filed the same before the court on
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9.12.1999 itself, requesting the court to sent the sample for chemical analysis. Exts.P2 and P3 got marked through PW2. PW4 who undertaken the investigation has finally laid the charge. When PW4 was examined, Ext.P4 chemical analysis report was marked through PW4. It is on the basis of the above evidence and materials, the trial court came into the above finding and convicted the appellant and sentenced him.
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forwarding note and therefore Ext.P4 chemical analysis report cannot be believed. It is also contended that the cash which allegedly seized from the possession of the accused is not produced. So according to the learned counsel, in the light of the above defects, the findings of the court below are liable to be set aside. Per contra, the learned Public Prosecutor submitted that the evidence of prosecution witnesses are intact and nothing brought on record to disbelieve their version. So, according to the learned Public Prosecutor, the findings of the court below are purely based upon the evidence of official witnesses and there is no illegality in basing the conviction on such evidence. Therefore, the learned Public Prosecutor submitted that no interference is warranted.
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view of the evidence and materials on record, the question to be considered is whether the trial court is justified in its finding and convicting the appellant for the offence under sections 8 (1) and (2) of the Abkari Act. I have already referred to the evidence and materials on record. The main contention advanced by the learned counsel for the appellant is that the prosecution has failed to adduce any independent evidence and therefore the prosecution case cannot be believed. I am unable to sustain the above contention. In the decision in Vikraman Vs. State of Kerala (2007(1) KLT 1010) , this Court has held that, “When evidence of Detecting Officer is credible, hostility of independent witness is not fatal in Abkari trials.” Similarly, in another decision in Abdul Rasheed Vs. State of Kerala (2008(3) KLT 150) it is held that, “If testimony of official witnesses is blemishless and free from suspicion and inspires confidence, hostility shown by ill-motivated independent witness
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is of no consequence.” In the present case, to prove the seizure of the contraband article from the possession of the accused, the prosecution produced and examined Pws.1 and 3. Though these witnesses were subjected to lengthy cross examination, nothing brought on record to discredit their version. Suffice to say, the above evidence of Pws.1 and 3 find corroboration from the contemporary document, namely Ext.P1 mahazar prepared by PW1. In the light of the settled position, there is no legal impediment in resting a conviction on the basis of the evidence of official witnesses, provided, their evidence are free of doubt and infirmities or discrepancies. In the present case, as I indicated earlier, though these witnesses were thoroughly cross examined, nothing brought to impeach their credibility. In this juncture it is relevant to note that this is not a case where the prosecution has not attempted to obtain the service of independent witnesses connected with the seizure effected by them. But as evident from Ext.P1
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Crl.A.No.2234 of 2005
mahazar and in view of the evidence of Pws.1 and 3, the entire seizure and arrest of the accused and the drawing of the sample were made in the presence of independent witness whose names are shown in Ext.P1. During the trial of the case, the prosecution has also cited those witnesses for examination during the trial and summons were also gone from the court. So the said fact shows that the prosecution was very anxious to examine the independent witness in the present trial, but their endeavour was defeated by such independent witnesses. Thus even though the approach of prosecution to examine the independent witness was failed, the evidence on record adduced by the prosecution through the Official Witnesses are intact and those evidence could not be shaken by the defence. So, the contentions taken by the learned counsel for the appellant is not sustainable.
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Crl.A.No.2234 of 2005
prosecution, they detected the crime at about 12.30 p.m. on 8.12.1999 and after completing the seizure and arrest of the accused, Pws.1 and 3 returned to the Excise Range Office at Karthikapally and they entrusted the accused, the documents and the contraband article and samples with PW2 for further action and thus PW2 prepared Ext.P2 crime and occurrence report and Ext.P3 list, and on completing such formalities, on the next day, the accused as well as the contraband article were produced before the court. So, according to me, there is no delay at all. The counsel has no case that by the production of contraband article on the next day of the seizure, any prejudice is caused to the accused. It is also contended that no forwarding note is produced and marked by the prosecution. But it is relevant to note that no contention is advanced against Ext.P4 chemical analysis report due to the lapse of a forwarding note. But going by the evidence of PW2 it can be seen that he had categorically stated that,
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“പ�ത�യ� remand അപ�ക സഹ�തവ�� യത�ണ� സ�ധനങള യത�ണ�
list-ല പ�ര�� സ�മ�ള ര�സ�ര�പ��ധനയ � അ� �ന�ള
requisition സഹ�ത� 9-12-99 ത"�ത� പ#�ടത���ല ഹ�ജര� �.” It is relevant to note that there is no cross examination on the above deposition of PW2. Since all other formalities towards the detection of the crime, seizure of contraband article, drawing of sample, arrest of the accused and production of the same before the court are proved properly and when there is no substantial challenge against the same, according to me, the non marking of forwarding note is not fatal to the prosecution.
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appellant submitted that a lenient view may be taken in the matter of sentence. According to me, the above submission requires positive consideration. From the available evidence and materials it appears that the quantity of contraband article involved are 4.5 ltrs. of arrack and the prosecution has no case that he is a habitual offendor or he had involved in any other crime previously. It appears that at the time of the alleged incident, the appellant was only at the age of 42 and now he crossed 50 years of age. Having regard to the facts and circumstances involved in the case and in the light of the above mitigating circumstances, according to me, the sentence imposed by the court below requires modification. According to me, 9 months' simple imprisonment will be sufficient to meet the ends of justice and while retaining the sentence of fine, the default sentence can be reduced into 15 days. Accordingly, the appellant is sentenced to undergo rigorous imprisonment for 9 months and to pay a fine of `1 lakh and in default to pay fine, he is directed to undergo simple
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imprisonment for 15 days. Set off is allowed.
In the result, this appeal is dismissed, confirming the conviction recorded by the trial court against the appellant for the offence under section 8(1) and (2) of the Abkari Act as per the impugned judgment dated 23.11.2005 in S.C.No.538/03 of the court of Additional Sessions Judge (Fast Track) court-1, Alappuzha, 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 21.12.2013 to receive the modified sentence and 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.
Sd/-
V.K.MOHANAN, Judge
ami/
//True copy//
P.A. to Judge
3 issues framed by the court
Whether the trial court was justified in convicting the appellant under sections 8(1) and (2) of the Abkari Act based on official witness testimony.
Whether the delay in producing contraband or non-production of a forwarding note vitiates the conviction.
Whether the sentence requires modification considering the appellant's age and lack of prior convictions.
Colour shows how this judgement treated each authority
Vikraman Vs. State of KeralaReferred¶46
Vikraman Vs. State of Kerala (2007(1) KLT 1010)
Abdul Rasheed Vs. State of KeralaReferred¶46
Abdul Rasheed Vs. State of Kerala (2008(3) KLT 150)
1 provisions across 1 enactments
VISWAN
THE STATE OF KERALA
V.K. MOHANAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
V.K. MOHANAN
Parties & counsel
