Partly allowed

Ponnappan v. State of Kerala

Kerala HC8 Jan 2016CRL.A/1058/2004

Case brief

AI extract

What is this about?

An appellant appealing against conviction and sentence for possession of arrack. The High Court set aside conviction under Section 55(a) and convicted under Section 8 of the Abkari Act. A PCA penalty of 3 months' simple imprisonment and fine was imposed. The ruling cited Sections 8(1), 2, and 55(a) of the Abkari Act based on the principle that mere possession attracts Section 8.

What did the court decide?

Conviction under Section 55(a) set aside; accused convicted under Section 8(1) and (2) with sentence of 3 months simple imprisonment and Rs. 1 lakh fine.

Ponnappan Vs State of Kerala — Corruption | 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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FRIDAY, THE 8TH DAY OF JANUARY 2016/18TH POUSHA, 1937

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CRL.A.No. 1058 of 2004 ( )

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AGAINST THE JUDGMENT IN SC 477/2001 of ADDL.SESSIONS COURT (ADHOC)II, ALAPPUZHA DATED 21-06-2004

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APPELLANT/ACCUSED:

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PONNAPPAN SANDHYA BHAVANAM, KIZHAKKEKKARA THEKKUM MURI THRIKKUNNAPPUZHA VILLAGE.

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BY ADVS.SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA

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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 08-012016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.D.RAJAN, J

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Crl.A.No.1058 of 2004 ....................................... Dated 8^th January, 2016

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JUDGMENT

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Appellant is the accused in S.C.No.477 of 2001 before Additional Sessions Judge (Fast Track II), Alappuzha challenges the conviction and sentence under Section 8(1) (2) and 55(a) of the Abkari Act. The charge against the accused was that on 9.3.2000 at 12.15 noon, he was found in possession of 750 ml of arrack in a bottle near the house of one Raveendran in Trikkunnapuzha panchayat by the Preventive Officer, Excise Range Office, Karthikappally. He was arrested, the contraband articles were seized and registered a crime and occurrence report. After completing investigation, Excise Range Inspector, Karthikappally laid final report before Judicial First Class Magistrate-I, Haripad and from there the case was committed to Sessions Court, Alappuzha, from there it was made over to Additional Sessions Court, Fast Track II.

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During trial, prosecution examined five witnesses and marked Ext.P1 to P4 as documentary evidence.

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Cra 1058/2004 2

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Material objects were admitted as MO1 and 2. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. Learned Additional Sessions Judge convicted the accused under Section 55(a) of the Abkari Act and sentenced to rigorous imprisonment for one year and fine of Rs.One lakh with a default sentence of rigorous imprisonment for three months. Being aggrieved by that, he preferred this appeal.

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Heard both sides. Learned counsel appearing for the appellant contended that forwarding note was not marked in the trial court and no bonafides in the alleged siezure. Moreover, appellant is more 71 years and prays for leniency.

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The occurrence was deposed by PW1, who was the Preventive Officer, Special squad, Alappuzha. His evidence shows that on 9.3.2000, he was conducting patrol duty and reached at Trikkunnapuzha valiyaparambu, Kizhakkekara road. The accused was found carrying a bag. PW1 intercepted him and inspected

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Cra 1058/2004 3

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the bag, detected arrack in it. Those material objects were marked as MO1 and 2. He took 200 ml as sample and sealed at the place of occurrence. The independent witness present there attested the seizure. For that he prepared Ext.P1 mahazar. The mode of taking sample and sealing was not challenged by the defence counsel during cross examination of PW1. A perusal of the oral evidence of PW1 makes it clear that he seized MO1 and 2 as alleged from the place of occurrence.

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PW2 Excise guard supported the evidence of PW1. He accompanied PW1 during patrol duty. He also stated the same version given by PW1 and identified MO1 and 2.

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PW3 and 4 are the independent witnesses cited by the prosecution. Both witnesses denied their signature in Ext.P1. PW5 was the Excise Inspector, Karthikappally who deposed that he registered the case and Ext.P2 is the crime and occurrence report. The accused and contraband articles were produced before court and submitted the articles for forwarding the sample for

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Cra 1058/2004 4

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chemical examination. Ext.P3 is the thondi list. After

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completing investigation, he laid charge before court. Ext.P4 is the report of chemical analysis. A persual of Ext.P4 shows that the seized article contain 30.87% of ethyl alcohol. The sealed bottle containing 200 ml of clean and colourless liquid involved in Crime No.15 of 2000 of Karthikappally Excise Range. The seal in the bottle was in tact and found tallied with the sample seal provided. Appellant has no dispute with regard to the content in Ext.P4. If that be the position, the prosecution has proved the alleged seizure. Analysing the evidence of PW1, PW2 and PW5, I am of the view that no reasons are stated by the appellant to disbelieve the official witnesses. Therefore the seizure of arrack is proved by the prosecution.

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Trial court convicted the accused under Section 55 (a) of the Abkari Act. On a close reading of Section 8(1) and (2) it is clear that no person shall manufacture, import, export, permit, possess, store, distribute, bottle or sell arrack in any form. If any person contravenes any

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Cra 1058/2004

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provision of sub section(1), he shall be punishable under the Act . This court in Jose V. State of Kerala (2007(2)

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KLT 202) held that mere possession of arrack in any form without any authority would attract only Section 8 of the Abkari Act.

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In the result, the conviction under Section 55(a) of the Abkari Act is set aside and the appellant is convicted under Section 8(1) and (2) of the Abkari Act and sentenced to simple imprisonment for three months and fine of Rs.One lakh and in default of payment of fine, simple imprisonment for 15 days. Relied the decision of Apex Court in Sasikumar V. State of Kerala (2012(4) KLT 857). The period of detention undergone by the accused shall be entitled to set off as per Section 428 of Cr.P.C. Appellant is directed to surrender before trial court to undergo the modified sentence failing which the Additional Sessions Judge shall issue non bailable warrant forthwith.

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P.D.RAJAN, JUDGE

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lgk

Ponnappan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Ponnappan v. State of Kerala

Case brief

What is this about?

What did the court decide?

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