Partly allowed

Vasu v. State of Kerala

Kerala HC5 Aug 2016CRL.A/144/2009

Case brief

AI extract

What is this about?

Criminal Appeal against conviction under the Abkari Act for brewing arrack. The High Court rejected contradictions in seizure evidence but reduced the mandatory sentence to simple imprisonment for two months and reduced the default term due to the appellant's physical incapacitation.

What did the court decide?

Conviction maintained; sentence reduced to simple imprisonment for two months and fine of ₹1 lakh (default: 15 days simple imprisonment) with set-off allowed.

Vasu 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 B.KEMAL PASHA

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FRIDAY, THE 5TH DAY OF AUGUST 2016/14TH SRAVANA, 1938

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CRL.A.No. 144 of 2009

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SC 378/2007 of ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC),FAST TRACK NO 1, THRISSUR DATED 21-12-2007

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APPELLANT/ACCUSED:

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VASU, S/O. KOCHUKUTTAN, KALAPURAKKAL (HOUSE), VELLIKULANGARA, PERUMPILLICHIRA.

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BY ADVS.SRI.C.HARIKUMAR SRI.ARAVINDA KUMAR BABU T.K. SMT.MADHURI ANAND

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RESPONDENT/RESPONDENT:

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STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM, THROUGH S.I. OF POLICE, PUDUKKAD POLICE STATION.

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BY GOVERNMENT PLEADER SMT HYMA.S

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.V.

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B. KEMAL PASHA, J.

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Crl. Appeal No.144 of 2009

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Dated this the 5^th day of August, 2016

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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Appellant is the accused in SC No.378/2007 of

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the Additional Sessions Court, Adhoc-I, Thrissur, who stands convicted under Sections 55(g) and 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay fine of ₹1 lakh, in default to undergo simple imprisonment for two months for each of the said offences.

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The prosecution case is that on 26.09.2005 at

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10.15 p.m., the accused was found engaged in brewing arrack at his property. A quantity of 4 litres of arrack and around 35 litres of wash were seized from his possession.

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Crl.A.144/2009

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: 2 :

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The offence was detected by PW4 Excise

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Inspector, Irinjalakkuda. He seized the contraband through Ext.P1 mahazar and drew 300 ml. of arrack and 500 ml. of wash as sample. The accused was placed under arrest. On reaching the excise office with the accused, properties and records, he registered Ext.P4 crime and occurrence report. On the same day, he produced the accused along with the properties and records before court. Ext.P6 is the property list. He conducted the investigation and filed the complaint on getting Ext.P10 certificate of chemical analysis.

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On the side of the prosecution, PWs 1 to 4 were examined, Exts.P1 to P10 were marked and MOs 1 to 5 were identified. No defence evidence was adduced. The court below found the accused guilty of the offences punishable under Sections 55(g) and 58 of the Abkari Act, convicted him thereunder and sentenced him as aforesaid.

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Heard learned counsel for the appellant and learned Public Prosecutor.

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Crl.A.144/2009

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: 3 :

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Learned counsel for the appellant has argued

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that on account of a fall from a tree, the appellant was incapacitated and he could not do any work at all and, therefore, it cannot be believed that he was engaged in brewing arrack. It has been argued that there are contradictions between the evidence of PW1 and PW4 regarding the taking of sample. It has been further argued that the copy of the forwarding note does not contain the seal.

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According to PW4, while he along with the excise party was on patrol duty, they got information that the accused was engaged in brewing arrack. On reaching the portion behind the house of the accused, they could see the accused engaged in brewing arrack. Boiling wash of around 35 litres and 4 litres of arrack could be found there. The accused was placed under arrest and the contraband was seized through Ext.P1. Samples were drawn from the wash as well as the arrack. In cross-examination, he has deposed

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Crl.A.144/2009

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: 4 :

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that as per his direction, the sample was drawn by the Excise Guard named A.Santhosh, who was present along with him.

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PW1 has fully corroborated the versions of PW4 regarding the search, seizure, etc. In the cross-examination of PW1, it seems that he has deposed that sample was taken and the seal was affixed by PW4. It is based on the said versions, it has been argued that there is contradiction between the versions of PW4 and PW1 regarding the taking of sample. PW4 has deposed that as per his instructions and directions, the sample was taken by an Excise Guard. At the same time, what has been narrated by PW1 is that it was PW4, who took the sample and affixed his seal. Even if the sample was drawn physically by an Excise Guard, it was under the instructions and directions of PW4. Therefore, it can only be held that the sample was drawn by PW4. The said contradiction is not at all material.

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Ext.P6 property list contains the specimen seal.

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Crl.A.144/2009

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: 5 :

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Ext.P6 clearly shows that the same reached the Judicial First Class Magistrate's Court, Chalakkudy on 26.09.2005 itself. The initial of the learned Magistrate with the date is there as an endorsement in Ext.P6. The entire properties including sample were produced before court on 26.09.2005 itself. When specimen seal has been provided in Ext.P6, there is no meaning in contending that the copy of the forwarding note does not contain the specimen seal. Specimen seal will be there in the original of the forwarding note. Ext.P10 certificate of chemical analysis clearly reveals that item No.1 contained 58.73% by volume of ethyl alcohol and item No.2, evidently the sample taken from the wash, contained traces (0.13%) by volume of ethyl alcohol. On considering the evidence available in the case in the light of the records and the arguments forwarded by either side, this Court is satisfied that there is sufficient evidence to convict the accused for the offences under Sections 55(g) and 58 of the Abkari Act. There is absolutely nothing to interfere with

Crl.A.144/2009

: 6 :

the conviction.

Learned counsel for the appellant has canvassed

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for the maximum leniency of this Court in sentence by pointing out that even prior to the incident, the appellant was incapacitated on account of a fall from a tree and, therefore, he could not do any man labour to pull on. Considering the said fact and also by relying on the decision of the Apex Court in Sasikumar Vs. State of Kerala [2012 (4) KLT 867 (SC)] followed by this Court in Rajan Vs. State of Kerala [2013 (3) KLT 654], this Court is of the view that the appellant is entitled to the maximum possible leniency in the question of sentence. This Court is of the view that a sentence of simple imprisonment for two months and to pay a fine of ₹1 lakh, in default to undergo simple imprisonment for 15 days more for each of the offences will meet the ends of justice.

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In the result, this Criminal Appeal is allowed in part by maintaining the conviction and modifying the sentence as

Crl.A.144/2009

: 7 :

follows:-

The appellant is sentenced to undergo simple imprisonment for two months and to pay a fine of ₹1 lakh, in default to undergo simple imprisonment for 15 days more, for each of the offences. The appellant is entitled to set off, of the period, if any, undergone by him in detention in connection with the investigation, inquiry and trial of this case, under Section 428 Cr.P.C.

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Sd/- (B.KEMAL PASHA, JUDGE)

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aks/11/08

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// True Copy //

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PA to Judge

Vasu v. State of Kerala

Case brief

What is this about?

What did the court decide?

Vasu v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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