Partly allowed

Thulasi Das @ Eli Thulasi v. State of Kerala

Kerala HC16 Jan 2014CRL.A/1948/2003

Case brief

AI extract

What is this about?

High Court of Kerala affirmed conviction for possession of arrack under section 55(a) of Abkari Act, rejecting disputability over seizure quantity while modifying imprisonment from 4 to 6 months due to appellant's age and low quantity involved.

What did the court decide?

Conviction confirmed. Sentence modified to 6 months rigorous imprisonment; fine maintained at Rs 1 lakh.

Thulasi Das @ Eli Thulasi Vs State of Kerala — Cheque Dishonour | Kerala HC (2014)

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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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THURSDAY, THE 16TH DAY OF JANUARY 2014/26TH POUSHA, 1935

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CRL.A.No. 1948 of 2003 ( )

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AGAINST THE JUDGMENT IN SC 520/1999 of ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC)-II, KOLLAM DATED 17-11-2003

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APPELLANT(S)/ACCUSED:

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THULASI DAS @ ELI THULASI, S/O.GANGADHARAN, ANJALI BHAVANAM, PUTHUCHIRA, THAZHUTHALA VILLAGE.

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BY ADVS.SRI.P.VIJAYA BHANU SMT.P.MAYA

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RESPONDENT(S)/COMPLAINANT:

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

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BY PUBLIC PROSECUTOR SMT.T.Y.LALIZA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-01-2014, 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.1948 of 2003

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Dated this the 16^th day of January, 2014.

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J U D G M E N T

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By the judgment dated 17.11.2003 in S.C.No.520/99

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of the court of the Additional District and Sessions Judge (Ad hoc) II, Kollam, convicted and sentenced the appellant, who is the sole accused in the above case for the offence under section 55(a) of the Abkari Act and thus this appeal is preferred at the instance of the accused in the above sessions case, against the above judgment of the trial court.

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The prosecution case is that on 30.7.1998 at 5 p.m., the accused was found in possession of arrack in 24 hundred ml. plastic covers enclosed in a black polythene cover at Thrikovilvattom Village, Puthuchira cherry in the property of one Vidhyadharan on the south of the pathway leading from Kaniyamthodu to Perumkulam river and thus

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the accused has committed the offences punishable under sections 55(a) and (i) of the Abkari Act. With the above allegation, Crime No.298/98 was registered in the Kottiyam Police Station for the said offences.

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On completing the investigation, report was laid in the court of Judicial First Class Magistrate-II, Kollam, and the learned Magistrate by his order dated 25.11.1998 in C.P.No.96/98 has committed the case to the Sessions court, wherein S.C.No.520/99 was instituted and firstly made over it to the court of Additional District and Sessions-Kollam and subsequently withdrawn the case from that court and made over to the present trial court for disposal. Thus when the accused appeared, after hearing the prosecution as well as the defence, the learned Judge of the trial court has framed a formal charge against the accused for the offences punishable under sections 55(a) and (i) of the Abkari Act and when the said charge read over and explained to the accused, he denied the same and pleaded not guilty. Thereafter, the prosecution has examined Pws.1

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to 5 and produced Exts.P1 to P5 documents and also produced M.Os.I and II, to substantiate its allegation against the accused. No evidence whatsoever adduced from the side of the defence. The trial court has finally found that the prosecution evidence could not disclose that the accused was found actually selling the arrack, particularly when there were no customers in the scene of occurrence and the evidence on record is not sufficient to show that the sum of `119/- recovered from the body of the accused was the sale consideration received by him by selling the contraband article. So, according to the learned Judge, the evidence related to the offence under section 55 (i) of the Abkari Act is too weak and the prosecution has failed to prove the said offence beyond shadow of reasonable doubt. But the learned Judge has also found that the prosecution has succeeded in establishing the possession of the contraband article with the accused and accordingly he is found guilty for the offence under section 55(a) of Abkari Act. On such finding, the appellant/accused

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is convicted for the offence under section 55(a), whereas he is acquitted with respect to the offence under section 55(i) of the Abkari Act, charged against him. On conviction of the appellant for the offence under section 55(a), he is sentenced to undergo rigorous imprisonment for 4 years and to pay a fine of `1 lakh and in default of payment of fine, he is directed to undergo simple imprisonment for one year. Set off for 118 days is allowed under section 428 of Cr.P.C. It is against the above finding and the conviction recorded against the appellant/accused for the offence under section 55(a) of the Abkari Act and the sentence thereon are challenged in this appeal.

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I have heard Adv.Sri.P.Vijaya Bhanu, the learned senior counsel for the appellant and Adv.Smt.T.Y.Laliza, the learned Public Prosecutor for the State.

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Though the prosecution has examined altogether 5 witnesses to substantiate its allegation against the accused, only Pws.3, 4 and 5-the official witnesses had supported the case of the prosecution and Pws.1 and 2, who are

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independent witnesses examined in this case, had turned hostile towards the prosecution. Pws.3, 4 and 5 are respectively the then Police Constables and Sub Inspector of Police attached to Kottiyam Police Station. When these witnesses were examined, they have deposed fully in terms of the prosecution allegation. According to the above official witnesses of the prosecution, while they were on patrol duty on 30.7.1998, PW5 got reliable information about the illegal possession of arrack in plastic covers by one Thulasidas @ എല� ത�ളസ� and about the sale of the same and accordingly they proceeded to the place of occurrence and thus they detected the crime. According to them, when they reached the spot, the accused was found in possession of the contraband article and he was intercepted and on questioning the accused, he told them about his identity and thereafter the material objects were taken into custody and the samples were also taken in the presence of independent witnesses for chemical analysis. Thus when Pws.3 and 4 were examined, they have deposed

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in terms of the prosecution allegation. PW5 is the officer who detected the crime and effected the seizure and arrest of the accused. So, to substantiate the prosecution allegation, the prosecution mainly depends upon the evidence of PW5, supported by the evidence of Pws.3 and 4 when the independent witnesses turned hostile towards the prosecution. Thus when PW5 examined, he had deposed the facts which lead to the seizure of the contraband article from the possession of the accused and his arrest. According to PW5, when himself and other police persons, that consist of Pws.3 and 4, were on patrol duty on 30.7.1998, he received reliable information to the effect that the accused, namely Thulasidas, whose nick name is Eli Thulasi, was conducting sale of arrack in the coconut homestead of one Thadathil Puthenveettil Vidyadharan, particularly, on the south- east corner of the said property, on the south-west side of Puthuchira Eila in Vyiki Puthuchira and accordingly, himself and party proceeded towards the said place and they reached there by 5 p.m.,

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and when they reached, he saw a man at that place with a glass in his hand and a plastic bag filled up with something was seen along his side and according to PW5, on seeing the Police party, that person, after having abandoned the glass and the plastic cover, tried to ran away from the spot, but he was intercepted. According to PW5, on questioning him about his name and address, that person disclosed his name and address as, “പ�ത�ച�റ അഞ�ല� ഭവന�ല ത�ളസ�ദ�സ” and he further disclosed that he was known as, “എല� ത�ളസ�”. According to PW5, the above plastic bag was opened and examined in the presence of witnesses and on such inspection, PW5 detected 24 plastic covers each having capacity of 100 ml. containing full of liquid and he had opened one of such plastic covers and the liquid was identified as arrack by smelling and tasting. It is the further case of PW5 that, the accused was found in possession of arrack, which is banned, accordingly he was arrested at about 5.15 p.m. and PW5 has identified the person who was standing in the box as the accused who

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was so arrested. He had deposed further that besides the cover opened, one more cover had also opened and the contents of both plastic covers, which would come about 200 ml. was poured into a bottle having capacity of 375 ml. and the same was sealed then and there, and seized. According to PW5, the remaining 22 covers out of the 24 plastic covers and the two empty plastic covers and the glass, which were found in the possession of the accused were seized, after putting the same in the plastic covers and taken into custody. He had also deposed that during the search, they had also seized four currency notes of 10/- denomination, five currency notes of 5/denomination and two currency notes of 2/- denomination, which would come to a total amount of 119/-. According to PW5, the entire proceedings including the detection of the crime, seizure of contraband article contained in 24 packets each having capacity of 100 ml., the drawing of sample from two plastic packets each containing 100 ml. and thus drawing of 200 ml. of sample from two plastic

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packets into a bottle of 375 ml. capacity and arrest of the accused etc. are elaborately recorded in the mahazar which prepared at the spot and thus Ext.P1 mahazar was marked through PW1. He had also identified the glass as M.O.1. According to PW5, when he was about to return from the spot, one more glass was found and the same was also seized which he identified as M.O.2. It is the further case of PW5 that, after reaching Police Station, he had registered a case against the accused as Crime No.298/98 for the offences punishable under sections 55(a) and (i) of the Abkari Act. Thus, he identified the FIR, which was prepared as Ext.P2 that contained his signature. According to PW5, he produced the accused on the next day by filing a remand report and at that time, he produced the material objects by filing a property list. The property list is identified as Ext.P3. As seen from the endorsement that contained in Ext.P3 property list, after verification of the same, item no.2 in M.O.II mentioned in Ext.P3 was returned to the Police for safe custody. According to PW5,

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he had prepared a forwarding note for sending the sample for chemical examination and the duplicate copy of the forwarding note prepared was marked as Ext.P4. On such chemical analysis of the samples, Ext.P5 chemical analysis report was obtained and the same was marked as Ext.P5. As I mentioned earlier, Pws.3 and 4 also deposed in the same manner as deposed by PW5. It is on the basis of the above evidence and materials, the trial court entered into its finding and convicted the appellant for the offence under section 55(a) of the Abkari Act.

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The learned counsel for the appellant vehemently submitted that the prosecution has miserably failed to prove the conscious possession of the contraband article with the appellant/accused and therefore the conviction recorded under section 55(a) is legally and factually unsustainable. It is the further contention of the learned counsel that the prosecution has miserably failed to prove beyond shadow of doubt that Ext.P5 chemical analysis report represents the sample which was drawn from the

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contraband article allegedly seized from the possession of the accused, since as per Ext.P3 property list, the capacity of the plastic packet containing the liquid was 200 ml., whereas as per the case of the prosecution, particularly, in view of the evidence of PW5, supported by Ext.P1 mahazar, each plastic packet contained in M.O.1 was having the capacity of 100 ml. Therefore, according to the learned counsel, the finding of the trial court is incorrect and illegal and is liable to be set aside and the appellant is entitled to get an acquittal.

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Per contra, the learned Public Prosecutor submitted that, after having invited my attention to the deposition of Pws.3 to 5 and in view of the other contemporaneous documents, particularly, Exts.P1 and P2, it is strenuously submitted that the capacity of 24 plastic packets is 100 ml. and due to over sight, it was mistakenly recorded as 200 ml. in Ext.P3 property list and therefore the contention of the appellant in this regard is incorrect and liable to be rejected. According to the learned Public

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Prosecutor, the accused was found in close proximity with the plastic cover which contained the polythene packets containing illicit arrack and he was found in his possession a glass while he was engaged in the sale of illicit arrack and therefore though the accused was not exactly found in physical possession of the contraband article, in all other aspect, he was in possession of the contraband article and therefore the offence under section 55(a) is attracted. So, according to the learned Public Prosecutor, no interference is warranted.

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I have carefully considered the contentions advanced by both 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 divergent argument advanced from the side of the appellant and from the side of the prosecution and in view of the evidence and materials on record, the question to be considered is whether the finding and conviction recorded by the trial court are

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sustainable. At the outset, it is to be noted that though the prosecution has cited and examined two independent witnesses in support of its allegation and to corroborate the evidence of its official witnesses, those independent witnesses turned hostile towards the prosecution. Therefore, the further question to be considered is how far the evidence of Pws.3, 4 and 5-the official witnesses can be relied and acted upon in favour of the prosecution to canvass a conviction on such evidence. Though Pws.3 to 5, were subjected to lengthy cross examination, nothing brought on record to discredit their version. The defence has miserably failed to bring out any contradiction or infirmities or improbabilities in their evidence. There is no rule that the evidence of official witnesses can be relied and acted upon, only if their evidence is corroborated by independent witness. Of course, such a legal requirement arise when the evidence of such official witnesses is doubtful or contain infirmities or contradictions. But in the present case, as I indicated earlier, evidence of Pws.3 to 5

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are free of doubt and infirmities and contradictions. Thus, the evidence on record adduced by the prosecution through the evidence of the official witnesses shows that the police party headed by PW5 were proceeded to the place of occurrence on getting a reliable information including the overtact of the accused as well as the name of the accused whose nick name is “എല� ത�ളസ�”. Thus, on reaching the spot, PW5 and other official witnesses had seen the accused standing near a plastic cover holding a glass. It is also came out in evidence that on seeing the police party, the accused attempted to ran away from the spot, abandoning the glass and the plastic cover. It is after the inspection, the accused name is ascertained, which is tallying with the information received and also ascertained the content of the plastic cover which was kept near to him. It is also relevant to note that the plastic packets kept in the plastic cover, contains 100 ml. of liquid, which was subsequently identified as arrack, prepared for the purpose of sale. It is also relevant to note that as per Ext.P1

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mahazar, the place of occurrence is the property of one Vidyadharan. The above mentioned facts positively prove that the accused was having domain over the plastic cover containing liquor which was meant for sale and that is why the accused had attempted to flew away from the spot on seeing the police party. The above fact assures that the information received by PW5 was correct and the subsequent detection of the crime in the presence of the accused, further render the correctness of the information received by PW5. The above proved facts reiterate that the accused was in conscious possession of the contraband article seized in this case as alleged by the prosecution. The available evidence on record including the deposition of Pws.3 and 5 and the contemporaneous documentary evidence shows that the accused was in possession of the contraband article, for which the accused has no convincing or acceptable explanation. So, Section 64 of the Abkari Act which contemplate about the statutory presumption as to commission of offence in certain cases,

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is attracted in this case. On a reading of Section 64, it would show that,

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“In prosecution for the offence under section 55B, 56A, 57, 58, 58A and 58B, it shall be presumed until the contrary is proved, that the accused person has committed an offence under that section in respect of any liquor or intoxicating drug, or any still, utensil, implement or apparatus whatsoever for the manufacture of liquor other than toddy or of any intoxicating drug etc. xxxxxx of the possession of which he is unable to account satisfactorily.”

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In view of Section 64 referred above and in view of the evidence on record, according to me, the prosecution has succeeded in proving the possession of the contraband article with the accused and it is for him to give an account for the possession of the same. Therefore, the first contention taken by the learned counsel for the appellant fails.

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Another contention advanced is that the prosecution has not succeeded in proving its allegation against the appellant beyond reasonable doubt, on the ground that Ext.P5 chemical analysis report does not

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represents the sample allegedly drawn from the contraband article allegedly seized from the possession of the accused, since, according to the learned counsel, Ext.P3 property list describe the property seized from the possession of the accused as 200 ml. as the capacity of each plastic packets ; Whereas, as per the case of the prosecution and the evidence of PW1, the plastic packets which seized from the possession of the accused were having only the capacity of 100 ml. The above contention also, according to me, is unsustainable, in view of the evidence and materials on record. In this juncture it is relevant to note that the main core of the prosecution case is that PW5 and party detected the crime and at that point of time, by preparing Ext.P1 seizure mahazar, they seized 24 plastic packets each having 100 ml. liquid and out of that 24 packets, two packets were opened and the contents thereof were poured into a plastic bottle and thus the total quantity of samples thus drawn would come 200 ml. Thus, it is crystal clear that, according to the prosecution, each

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plastic packet contains 100 ml. liquid. Pws.3 to 5 deposed in terms of such case of the prosecution and each plastic packet contained 100 ml. of liquid. Ext.P1 seizure mahazar, which is the first document generated by the prosecution in this case, describe the plastic packets that seized and as per the above description, each plastic packet contains 100 ml. liquid. The evidence of Pws.3 to 5 are intact in this regard. It is the sample so drawn to sent it for chemical analysis as per Ext.P4 forwarding note. Ext.P5 chemical analysis report shows that the bottle was received as per the letter No.TR-316/98 dated 21.8.1998 of the committal Magistrate, which received by them on 22.8.1998, ie., on the next day itself, and the said bottle contains 200 ml. of clear and colourless liquid, which involved in Crime No.298/98 of Kottiyam Police Station and the seal on the bottle was intact and found tallied with the sample seal provided. So, the entire prosecution evidence and materials positively prove that it is the sample which drawn by PW5 from the 2 plastic packets out of 24 plastic

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packets seized from the possession of the accused, that reached at the hands of the chemical examiner. So, according to me, Ext.P5 chemical analysis report correctly shows that the contraband article which was in possession of the accused is none other than the arrack, since as per Ext.P5 chemical analysis report, the sample of liquid contain 29.65% by volume of ethyl alcohol. However, it is a fact that when PW5 prepared Ext.P3 property list, the 2^nd item is written as, “ഉദ�ശ� 200 ML വ�ത� ച�ര�യ� ന�റച 22 കവര ച�ര�യവ�� , രണ� ക�ല� ദപ�ള�ത�ന കവറ�� ..............”

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According to me, in Ext.P3, it is mistakenly noted as 200 ml. in stead of 100 ml., due to over sight, since in item no.1 in Ext.P3, it is written as 200 ml. arrack. The above endorsement in item no.2 of Ext.P3 was clearly due to over sight, since Ext.P1 mahazar and Ext.P2 FIR describe the capacity of each plastic packets as 100 ml. and nowhere it is written or recorded as 200 ml. As I indicated earlier, the total quantity of samples drawn from both the plastic packets opened, is only 200 ml. If the content of each

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plastic packet was 200 ml., naturally the total quantity of samples drawn would have been 400 ml., but it is only 200 ml.

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In this connection, it is also relevant to note that when PW5 was examined, he had deposed strictly in terms of the above case of the prosecution and he deposed in the chief examination itself about the drawing of the sample, the quantity of which was only 200 ml., but on this aspect, PW5 was not cross examined and nothing elicited from PW5 to show that the quantity of sample drawn was 400 ml. and the capacity of plastic packet was 200 ml. Moreover, it is pertinent to note that the prosecution, on the next day of the seizure of the entire contraband article, has produced the same before the court and at the time of the trial, the physical evidence was available in the court and during the trial, the defence has no case that what produced before the court are the plastic packets having 200 ml. capacity. Had such a question put before the court, the court could have got an opportunity to ascertain

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the capacity of plastic packets produced before it. Without raising any such factual question, based upon the question of facts, there is no meaning in arguing in appeal on the basis of Ext.P3, that samples drawn from the plastic packets and the plastic packets were having the capacity of 200ml. or the samples were drawn from some other packets.

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It is also relevant to note that in view of Section 8 (1) of the Abkari Act, arrack is prohibited in the State of Kerala. So, irrespective of the quantity possessed by the accused, if arrack is found in possession of any person, without any authority, he is liable to be proceeded under the provisions of S.8(1) of the Abkari Act and he is liable to be convicted and sentenced for the offence under section 8 (2) of the Abkari Act. Of course, the total quantity of the arrack found in the illegal possession of a convict is a decisive factor, in fixing the quantum of sentence. On the other hand, if the contraband article allegedly possessed by the accused is Indian Made Foreign Liquor, or some other

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liquor, there would have been some substance in the submissions made by the learned counsel for the appellant, since the Indian Made Foreign Liquor and other liquors are not prohibited in the State of Kerala and the citizens are allowed to possess certain quantity of IMFL and therefore, if there is any dispute about the quantity with respect to that contraband article and if the prosecution fails to prove that the quantity allegedly seized is beyond the permitted limit, no offence would lie. However, in the present case, as per Ext.P5 chemical analysis report, the contraband article is none other than the arrack which is prohibited in the State of Kerala and therefore, irrespective of the quantity of the contraband article that was found in possession of the appellant, whether it is in the 100 ml. or 200 ml. packets, the section of offence is clearly attracted in this case. So, the above contention of the learned counsel for the appellant is also fails.

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In view of the above facts and circumstances and the evidence and materials on record, I find no reason to

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interfere with the findings of the court below and the conviction recorded by it against the appellant for the offence under section 55(a), particularly in view of the decision reported in Jose Vs. State of Kerala (2007(2)

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KLT 202) . In the above decision, it is held that, “The prohibition under Section 8(1) of the above Act came into force with effect from 3.6.1997 after which date no person is entitled

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to manufacture, import, export, transport, without permit

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transit, possess, store, distribute bottle or sell arrack in any

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form”. It is further held that, “There could not be any dispute

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that arrack consists of alcohol namely, Ethyl Alcohol”. So, according to the learned Judge, arrack is liquor, the possession of which, incidental to transportation will squarely attract S.55(a) of the Abkari Act. It is concluded by the learned Judge in the above decision as follows:-

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“18. As mentioned earlier, the conviction of the appellant in this case could have been recorded under any of the said penal provisions, namely S.8(2),55(a) or 58 of the

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Abkari Act.......”

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So, the conviction recorded by the trial court against the appellant is confirmed.

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As this Court confirms 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, particularly on the ground that the appellant is a 63 year old man and he is not a habitual offender of the above nature. According to me, the above submission requires positive consideration. However, it is proved by the prosecution that the accused was found in possession of 22 packets of arrack, which normally meant for sale. However, the total quantity of arrack involved in this case is only 2.4 ltrs. In the present case, though there was an allegation that the accused is guilty of offence under section 55(i) of Abkari Act, the trial court has not approved the above allegation and accordingly the appellant is acquitted of the offence under section 55(i) of the Abkari Act. But no appeal is preferred by the State against such

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acquittal. The total quantity involved is only 2.4 ltrs. and there is no case for the prosecution that the appellant is a habitual offender in the same nature of offence. The appellant at present is at the age of 63. Having considered all the above mitigating circumstances, according to me, the substantial sentence as well as the default sentence imposed on the appellant requires modification. Hence, according to me, while maintaining the sentence of fine and default sentence, the substantial sentence and default sentence can be reduced into 6 months and one month imprisonment respectively, which will be sufficient to meet the ends of justice. Accordingly, in modification of the substantial sentence imposed by the trial court, the accused is sentenced to undergo rigorous imprisonment for 6 months and while the sentence of fine and the fine amount is confirmed. In case of default in paying `1 lakh, he is directed to undergo simple imprisonment for one month in stead of one year as ordered by the trial court. Set off is allowed under section 428 of Cr.P.C.

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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, 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 and he is directed to appear before the trial court on 17.2.2014 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

Thulasi Das @ Eli Thulasi v. State of Kerala

Case brief

What is this about?

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Thulasi Das @ Eli Thulasi v. State of Kerala

Case brief

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