Partly allowed

Bhanu v. Excise Range Inspector

Kerala HC25 Nov 2013CRL.A/984/2003

Case brief

AI extract

What is this about?

A criminal appeal against conviction under Section 55(g) of the Abkari Act for illicit liquor manufacturing. The High Court upheld the conviction but modified the sentence, reducing imprisonment to three years.

What did the court decide?

Conviction confirmed; sentence modified to rigorous imprisonment for 3 years and default sentence reduced to 3 months simple imprisonment; appellant directed to surrender.

Bhanu Vs Excise Range Inspector — Criminal Trial and Appeal | Kerala HC (2013)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT :

¶3

THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI

¶4

TUESDAY, THE 21ST DECEMBER 2010 / 30TH AGRAHAYANA 1932 CRL.A.No. 984 of 2003()

¶5

-----------------------

¶6

( SC.278/2001 of ADDL. SESSIONS COURT (ADHOC)-II, PALAKKAD)

¶7

APPELLANT/ACCUSED:

¶8

---------------------------------

¶9

BHANU @ UDAYABHANU, AGED 57 YEARS, S/O.LAKSHMANAN, THEKKUMPURAM VEEDU, KEEZHPADAM, MUNDUR, PALAKKAD.

¶10

BY ADVS. SRI.K.P.RAGHUNATH SRI.K.P.BALAGOPAL SMT.SHANNU NARAYAN

¶11

RESPONDENTS/COMPLAINANT & STATE:

¶12

-----------------------------------------------------------

¶13

1. EXCISE RANGE INSPECTOR, PARLI RANGE, PALAKKAD (CR NO.27/98 OR MO.29/98)

¶14

2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

¶15

BY PUBLIC PROSECUTOR, SMT.LEKHA C. NAIR

¶16

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶17

JUDGMENT

¶18

Learned counsel for the appellant absent. The appeal is dismissed for nonprosecution.

¶19

21.12.2010

¶20

Sd/- P.Q.BARKATH ALI, JUDGE

/ TRUE COPY /

P.A. TO JUDGE

V.K.MOHANAN, J.

Crl.A.No.984 of 2003

¶26

Dated this the 25^th day of November, 2013

¶27

JUDGMENT

¶28

Challenging the conviction and sentence imposed on the

¶29

accused for the offence punishable under Section 55(g) of the Abkari Act as per the judgment dated 20/5/2003 in S.C.No.278 of 2001, the accused therein preferred this appeal.

¶30

The prosecution case is that, on 07/10/1998 at about

¶31

7.45 A.M. the accused was found in possession of about 15 litres of wash in an earthen pot and utensils for manufacturing liquor in contravention of the provisions of the Abkari act at his house bearing Door No.IX/147 of Mundur Grama Panchayat and thereby committed the offence punishable under Section 55(g) of Abkari Act.

¶32

On the above allegation, Cr.No.27 of 1998 was registered in the Excise Range, Parali and on completing the investigation, a formal charge was laid in the Judicial First Class Magistrate Court-II, Palakkad and subsequently by order dated 12/12/2000, the learned Magistrate committed the case

¶33

Crl.A.No.984 of 2003

¶34

:-2-:

¶35

to the Sessions Court where S.C.No.278 of 2001 was instituted and eventually transfered the case to the present trial court for disposal. Thus, when the accused appeared a formal charge was framed against him after considering the prosecution materials and their arguments and that of the accused, for the offence punishable under Section 55(g) of the Abkari Act and when the said charge read over and explained to the accused, he denied the same and pleaded not guilty. Consequently the prosecution adduced its evidence by examining Pws.1 to 5 and produced Exts.P1 to P10 and Mos.1 to 6 were also identified and marked as material objects. Finally, the trial court held that the accused was found in possession of 15 litres of wash and utensils for the purpose of manufacturing liquor in contravention of the provisions of the Abkari Act and accordingly he is found guilty under Section 55(g) of the Abkari Act and thus he is convicted thereunder. On such conviction the appellant/accused is sentenced to undergo rigorous imprisonment for four years and to pay a fine of `1,00,000/- and in default of payment of fine he is directed to

¶36

Crl.A.No.984 of 2003

¶37

:-3-:

¶38

undergo rigorous imprisonment for six months. Set off is allowed. Challenging the above finding and order of conviction and sentence the present appeal is filed.

¶39

Heard Sri.Nagaraj Narayanan, the learned counsel appearing for the appellant and Sri.N.Suresh, the learned Public Prosecutor for the State.

¶40

PW.1 is the then Excise Inspector of Parali Excise Range who detected the case and PW.2 is the then Excise Guard attached to Parali Excise Range who accompanied PW.1 at the time of the detection of the crime and seizure of the contraband article. When these witnesses were examined they are deposed that while they were conducting patrol duty and when they reached the patrol pump at Mundur, PW.1 got information that the accused keeping illicit arrack and after preparing search memo and forwarding the same to the court, he along with his party along with witnesses went to search the house of the accused and when they reached the house in question the accused was found in the veranda of the said house and after informing the accused about the purpose of

¶41

Crl.A.No.984 of 2003

¶42

:-4-:

¶43

their visit, search was undertaken, during which in the NorthWestern corner of the kitchen of the said house, a plastic pot of 15 litres capacity (MO.1), an earthen pot of 25 litres capacity (MO.2) which containing wash covered with a plastic sack (MO.3) were found. According to PWs.1 and 2, the contents of the earthen pot were examined in the presence of the accused and on tasting and smelling the contents of the earthen pot was identified as wash. Besides the above, an aluminium pot of 25 litre capacity (MO.4), an earthen pot of 20 litre capacity with a hole at the bottom (MO.5) and an aluminium vatta of 15 litre capacity (MO.6) having the smell and sediments of wash were also found. According to these witnesses, as the accused was involved in the offence he was arrested from the spot and the contraband articles were seized. According to these prosecution witnesses, 500 ml. of wash was taken as sample for chemical examination in a 650 ml. bottle and the said sample bottle was sealed and labelled from the spot. The balance wash in MO.2 pot was transferred to MO.1 plastic pot and its mouth portion was covered with a

¶44

Crl.A.No.984 of 2003 :-5-:

¶45

cloth and the same was also sealed and labelled. According to the prosecution the entire procedure has elaborately stated in a mahazar which was prepared then and there and thereafter the excise raiding party returned to the Excise Range Office with the accused as well as the contraband articles and the materials and the samples collected. On return to the Excise Range Office, a crime and occurrence report was prepared. Thus during the examination of PW.1 he had identified Mos.1 to 6 and also Ext.P1 search memo, Ext.P2 search list, Ext.P3 seizure mahazar, Ext.P4 arrest memo, Ext.P5 occurrence report, Ext.P6 forwarding note, Ext.P7 chemical analysis report. PW.2 has also identified the material objects and he had also deposed in tune with the deposition of PW.1 the detecting officer as he had accompanied PW.1.

¶46

Pws.3 and 4 are the independent witnesses examined in this case. Though PW.3 admitted his signature in Ext.P2 search list and Ext.P3 seizure mahazar, he turned hostile towards the prosecution. Though he has stated that he has not seen the excise party seizing Mos.1 to 6 from the house of the

¶47

Crl.A.No.984 of 2003

¶48

:-6-:

¶49

accused, he had put his signature on Exts.P2 and P3 from the panchayat road in front of the house of the accused at Keezhpadam. He had also admitted about the residence of the accused in the house in question at Keezhpadam, which is a thatched one. PW.4 is an independent witness who testified to the effect that he is residing at Keezhpadam and got acquaintance with the accused. According to PW.4, his house is situated within 50 meters west to the house of the accused. He had admitted the entire steps taken by the excise officials towards the seizure of wash and utensils which kept for the purpose of manufacturing liquor in the house of the accused. He had also stated that the accused was also involved in other abkari cases. He had categorically deposed before the court that the accused used to manufacture wash and to sell illicit arrack at his house. PW.4 has also stated that in the house of the accused he is residing along with his wife namely Prema and his children and it is a thatched house. PW.4 has also identified Mos.1 to 6. He had also admitted his signature in Exts.P2 and P3 which was put by him in the morning on that

¶50

Crl.A.No.984 of 2003

¶51

:-7-:

¶52

day while he was getting ready to go for his days work. PW5 is the then Excise Inspector who conducted the investigation. It is on the basis of the above evidence the trial court convicted the accused/appellant for the offence punishable under Section 55(g) of the Abkari Act.

¶53

The learned counsel for the appellant after taking me through the deposition of DW.1 the son of the accused and submitted that at the relevant point of time the accused was residing not at the house from where the contraband article seized and therefore the trial court is incorrect in convicting the appellant. The learned counsel for the appellant submitted that he has no other contention on merit. According to the learned counsel, if this Court is not inclined to interfere with the finding and conviction recorded, a lenient view may be taken in the matter of sentence. On the other hand, the learned Public Prosecutor submitted that, no interference is called for with respect to the finding recorded by the trial court since the prosecution evidence comprised of the deposition of Pws.1 and 2 the official witnesses and the

¶54

Crl.A.No.984 of 2003

¶55

:-8-:

¶56

independent witnesses namely PW.4. positively proved the involvement of the accused in the commission of the offence alleged against him. It is also the submission of the learned Public Prosecutor that the prosecution has undertaken a fair and proper investigation which can be gathered from the documentary evidence produced by the prosecution and there is no defect in the investigation, therefore, according to the learned Public Prosecutor, the trial court is correct in its finding and convicting the appellant for the offence punishable under Section 55(g) of the Abkari Act.

¶57

I have carefully considered the submissions made by the learned counsel for the appellant and the learned Public Prosecutor and I have perused the evidence and materials on record.

¶58

In the light of the above referred submissions of the learned counsel for the appellant and the learned Public Prosecutor and in view of the evidence and materials on record, the only question to be considered is, whether the trial court is justified in its finding and whether the conviction

¶59

Crl.A.No.984 of 2003

¶60

:-9-:

¶61

recorded is sustainable. The only contention advanced by the learned counsel for the appellant is that, the prosecution case is incorrect and the finding of the court below is unsustainable on the ground that the accused was not residing in the house in question from where the contraband articles were seized at the relevant point of time. According to the learned counsel, in view of the evidence of DW.1 and the photo copy of ration card produced, the accused was residing at Pothannur and not at Keezhpadam along with a lady namely Prema. The learned Judge of the trial court, after considering the defence version and evidence, was not inclined to admit the case of the defence. In this case, it is relevant to note that, as per the prosecution allegation, the appellant/accused was red-handed with the contraband article from the house bearing Door No.IX/147 of Mundur Grama Panchayat and the contraband articles were seized from the said house in the presence of the accused. Besides the evidence of Pws.1 and 2 the official witnesses, the independent witnesses examined supported the prosecution case. Though DW.3 turned hostile towards the

¶62

Crl.A.No.984 of 2003

¶63

:-10-:

¶64

prosecution he had admitted that the accused was residing in the said house and he is also residing very adjacent to the said house. He had also admitted his signature in Ext.P2 search list and Ext.P3 seizure mahazar. PW.4 is an independent witness and he had admitted the entire prosecution case and he had also deposed that the accused is involved in similar other abkari cases. He is also admitted that the accused is residing in the house mentioned above. He had categorically deposed about the arrest of the accused along with the contraband article seized from the above referred house. It is in the above backdrops of the prosecution evidence the defence version and its evidence has to be appreciated.

¶65

The learned Judge of the trial court on considering the evidence of DW.1 and the photo copy of the ration card produced has found that head of the house is shown as one Sarojini is his wife and Anilkumar and Jayan as their children and Ratnakumari as his daughter in law. The learned Judge further found that the detection was on 07/10/1998 and the ration card of the relevant period was not before the court.

¶66

Crl.A.No.984 of 2003

¶67

:-11-:

¶68

Though the said Prema was cited as defence witness she was not examined by the defence. It is also found that Ext.P4 arrest memo would go to show that the arrest was informed to his wife Prema who affixed her signature on Ext.P4. The trial court thus finally concluded that the testimony of PWs.1 to 4 along with Ext.P2 seizure mahazar, Ext.P4 arrest memo, Ext.P9 scene mahazar and Ext.P10 residential certificate would go to show that the accused is the husband of Prema and they are residing in the house bearing No.IX/147 of Mundur panchayat at Keezhpadam from 1993-94 to 1999-2000 from where the wash and Mos.1 to 6 were seized. Therefore, the evidence tendered by DW.1 by producing the photo copy of their ration card is no way helpful for the accused in view of the facts and circumstances involved in the present case. I find no illegality in the above finding of the learned Judge as I indicated earlier the concrete evidence produced by the prosecution including the evidence of independent witnesses shown that the accused was arrested with the contraband article from the house in question and therefore the defence

¶69

Crl.A.No.984 of 2003

¶70

:-12-:

¶71

evidence are not sufficient to overwhelm the above evidence and to disbelieve the prosecution case. Therefore, I find no reason to interfere with the finding of the court below and the conviction recorded against the appellant.

¶72

As this Court is not inclined to interfere with the order of conviction, the learned counsel submits that a lenient view may be taken in the sentence. In the given facts and circumstances and the evidence on record shows that the accused is a habitual offender. However it is relevant to note that at the time of the alleged incident the accused was at the age of 57 years. So, considering the above fact, according to me, the substantial sentence imposed by the court requires modification and the same can be reduced into 3 years rigorous imprisonment and while retaining the sentence of fine the default sentence can be reduced into three months. In the result, the sentence imposed by the trial court is modified and the appellant is directed to undergo rigorous imprisonment for 3 years and while retaining the fine amount the default sentence is reduced into three months simple imprisonment.

¶73

Crl.A.No.984 of 2003 :-13-:

¶74

Set off is allowed.

¶75

In the result, this appeal is dismissed confirming the conviction of the appellant for the offence under Section 55(g) of the Abkari Act, but subject to the modification with respect to the sentence to the extent indicated above. Accordingly, the appellant is directed to surrender before the trial court on 27/12/2013 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.

¶76

V.K.MOHANAN, JUDGE

¶77

skj

Bhanu v. Excise Range Inspector

Case brief

What is this about?

What did the court decide?

Bhanu v. Excise Range Inspector

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Chathankutty Vs State of Kerala

Thattaliyath Dinesan Vs State,Rep.by Public Prosecutor

Santhosh Vs State of Kerala

K.Sukumaran Vs State of Kerala

K.K.Sebastian Vs M.J.Michael

Sarngatharan Vs the State of Kerala