Partly allowed

Ayyappan v. State of Kerala

Kerala HC19 Jan 2016CRL.A/1014/2004

Case brief

AI extract

What is this about?

High Court set aside conviction under Section 55(a) of the Abkari Act for mere possession of arrack. Appellant convicted under Section 8 of the same Act. Appeal partly allowed with reduced sentence of three months imprisonment plus fine, allowing credit for time spent in custody.

What did the court decide?

Conviction under Section 55(a) set aside; appellant convicted under Section 8; sentence reduced to three months' imprisonment and one lakh fine, with set-off for detention.

Ayyappan Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2016)

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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 P.D.RAJAN

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TUESDAY, THE 19TH DAY OF JANUARY 2016/29TH POUSHA, 1937

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CRL.A.No. 1014 of 2004 ( )

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AGAINST THE JUDGMENT IN SC 199/2001 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC), MANJERI DATED 31-05-2004

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APPELLANT/ACCUSED:

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AYYAPPAN CHERUKAVU AMSOM, DESOM, ERNADU TALUK. BY ADVS.SRI.P.S.SREEDHARAN PILLAI SRI.K.B.SAJEESH SRI.P.GOPINATH SRI.C.S.SUNIL SRI.P.R.SREEJITH

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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R1 BY ADV. PUBLIC PROSECUTOR SRI N SURESH

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-012016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.D.RAJAN, J

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Crl.A.No.1014 of 2004 ....................................... Dated 19^th January, 2016

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JUDGMENT

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This appeal is preferred against the conviction and sentence in S.C.199 of 2001 of the Additional Sessions Judge, Fast Track-I, Manjeri under Section 8(1) and 55(a) of the Abkari Act. The charge is that on 8.7.1999 at 5 pm, appellant was found in possession of 1 ½ litres of arrack at Aikkarappady at Cherukavu amsom by the Excise Inspector, Malappuram Excise Range. Appellant was arrested and contraband articles were seized. Reaching at the excise office, they registered a crime and occurrence report. After completing investigation, Excise Inspector laid charge before Judicial First Class Magistrate, Malappuram. From there the case was committed to Sessions Court, Malappuram.

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During trial, prosecution examined PW1 to 4 and marked Ext.P1 to P6 and admitted MO1 in evidence. The incriminating circumstances brought out in evidence were denied by the appellant while examining him. He did not

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Crl.A.1014/2004 2

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adduce any defence evidence. Learned Additional Sessions Judge convicted the appellant under Section 55 (a) and sentenced to imprisonment for three years and fine of Rs.One lakh and in default, simple imprisonment for one year. Being aggrieved by that, accused preferred this appeal.

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Learned counsel appearing for the appellant contended that the quantity seized from the accused is 1 1 ½ litres and appellant is aged 60 years and thus he prays for leniency in sentence. Learned Public Prosecutor has no objection with regard to the above contention.

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PW1 to 3 were examined by the trial court to prove the occurrence. The evidence of PW1 shows that while he was working at Malappuram Excise Range on 8.7.1999 he conducted patrol duty within his jurisdiction. When he reached at the place of occurrence, the appellant was found standing on the side of the road with MO1. Upon suspicion, he intercepted him and inspected MO1 in which 1 ½ litres of arrack was detected. He seized MO1 after preparing Ext.P7 seizure mahazar. Ext.P1 is the

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Crl.A.1014/2004

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arrest memo. The cannas with arrack was marked as MO1. PW2 supported the evidence of PW1. He admitted that he was present at the place of occurrence at the time of arrest of the appellant. He also ascertained the content as arrack. PW2 was the Assistant Excise Inspector. Analysing the oral evidence of PW1 and 2, it is clear that PW1 seized MO1 from the possession of the appellant. But they did not accompany the independent witness to prove the alleged seizure.

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The case was registered by PW3. His evidence shows that PW1 produced MO1 and occurrence report before the Excise Range office and on the basis of that, he registered the crime and occurrence report. Ext.P3 is the occurrence report. He prepared the property list, Ext.P4. The seized articles were produced before court, Ext.P5 is the forwarding note. After completing investigation, PW4 laid charge before court. Ext.P6 is the chemical examination result. A perusal of Ext.P3 to P6 shows that the procedural formalities were complied in this case. Even though these witnesses were cross

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Crl.A.1014/2004

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examined by the defence counsel, nothing has been brought out to discard the direct oral testimony of the occurrence witness.

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The chemical examination report shows that the sample contained ethyl alcohol to a volume of 27.22%.

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The trial court analysed the chemical analysis report, seizure mahazar and concluded that the appellant was in possession of arrack. Even though defence counsel contended that there is no independent corroboration, no reasons are stated by him to discard the oral testimony of the official witnesses and no enmity was alleged against them. In the circumstances, I am of the opinion that possession of arrack is an offence punishable under Section 8(1) and (2) of the Abkari Act. Relied the decision of this court in Jose V. State of Kerala (2007 (2) KLT 202) and Gopan V. State of Kerala (2007(3) KLT 443) wherein it was held that mere possession of arrack in any form without any authority would attract only an offence under Section 8 of the Abkari Act. Therefore the conviction under Section 55(a) of the Abkari

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Crl.A.1014/2004

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Act is set aside and appellant is convicted under Section 8 (1) and (2) of the Abkari Act.

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Learned counsel appearing for the appellant submitted that appellant is aged 60 years, for sentence I rely on the decision in Sasikumar V. State of Kerala (2012(4) KLT 867). In the circumstance, appellant is sentenced to imprisonment for three months and fine of Rs.One lakh and in default of payment of fine, imprisonment for 15 days. The period of detention undergone by the accused during trial and investigation is entitled to set off under Section 428 Cr.P.C. Appellant is directed to surrender in the trial court to undergo the modified sentence. This appeal is allowed in part.

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P.D.RAJAN, JUDGE

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lgk

Ayyappan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Ayyappan v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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