Partly allowed

Leven v. State of Kerala

Kerala HC11 Feb 2016CRL.A/1498/2004

Case brief

AI extract

What is this about?

In this criminal appeal against conviction and sentence for carrying arrack, the High Court of Kerala found no illegality in the seizure evidence. While confirming the conviction under the Kerala Abkari Act, the court modified the imprisonment sentence from three years to three months based on a lack of criminal antecedents.

What did the court decide?

Conviction confirmed; sentence of three years imprisonment modified to three months imprisonment with Rs.1,00,000 fine.

Leven Vs State of Kerala — Criminal Trial and Appeal | 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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THURSDAY, THE 11TH DAY OF FEBRUARY 2016/22ND MAGHA, 1937

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CRL.A.NO. 1498 OF 2004 (C)

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AGAINST THE JUDGMENT IN S.C. NO.563/2002 OF ADDITIONAL SESSIONS JUDGE, FAST TRACK (ADHOC-I), ALAPPUZHA DATED 13-08-2004

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APPELLANT(S)/ACCUSED:

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LEVEN, S/O. PARAMAN, PUNNYAMKATTIL THEKKETHIL, MAHADEVIKAD MURI, KARTHIKAPPALLY VILLAGE.

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

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RESPONDENT(S)/COMPLAINANT :

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

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BY PUBLIC PROSECUTOR SRI.DHANESH MATHEW MANJOORAN

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.D. RAJAN, J.

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Crl. Appeal No.1498 of 2004

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Dated this the 11^th day of February, 2016

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J U D G M E N T

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This appeal is preferred by the accused against

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the conviction and sentence in S.C. No.563 of 2002 of the Additional Sessions Judge, Fast Track (Adhoc-I), Alappuzha under Sec.8(1) of the Kerla Abkari Act. The charge against the appellant is that on 21.06.1999 at 10.45 a.m., the Excise Inspector was conducting patrol duty at Mahadevikad Muri in Karthikappally village, the appellant was found carrying 4½ litres of arrack through the road on the northern side of Punyamkattil veedu near Anaganvadi No.34. The excise officials seized the arrack and registered the case. After completing the investigation, the Excise Range Inspector, Kartikappally laid charge before the Judicial First Class Magistrate Court, Haripad. From there, the case was committed to Sessions Court for trial. Subsequently, it was made over to the Additional Sessions Judge (Adhoc-I), Alappuzha.

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During trial, prosecution examined PW1 to

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Crl. Appeal No.1498 of 2004 2

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PW5 and marked Exts.P1 to P6. MO1 was marked as material object. The incriminating circumstances brought out in evidence were denied by the appellant while questioning him. He did not adduce any defence evidence. The learned Additional Sessions Judge convicted the accused under Sec.8(1) of the Kerala Abkari Act and sentenced him to imprisonment for three years and fine of Rs.1,00,000/- (Rupees one lakh only) and in default of fine, simple imprisonment for one year. Being aggrieved by that, he preferred this appeal.

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Learned counsel for the appellant contended that there is material contradiction in the evidence of occurrence witnesses. PW1 deposed that the accused was seen at a distance of 70 metres from the road whereas, the evidence of PW2 is that they saw the accused at a distance of 750 metres. This contradiction shows that there is no consistent case with regard to the occurrence.

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Learned Public Prosecutor contended that there is no reason to interfere in the findings of the trial court.

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The occurrence was stated by PW1 Excise

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Crl. Appeal No.1498 of 2004 3

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Inspector, Haripad. The evidence of PW1 shows that on 21.06.1999, while he was conducting patrol duty as per the direction of the Excise Circle Inspector, he found the appellant walking along the side of the road with the contraband article near Anganvadi No.34 of the Mahadevikad Muri in Karthikappally. He intercepted the appellant and inspected MO1 in which, he detected 4½ litres of arrack. The appellant was arrested. The Excise Circle Inspector took the sample from MO1 and sealed it at the place of occurrence. He also affixed label and prepared mahazar. The accused and witness present there attested Ext.P1 mahazar. Ext.P2 is the arrest memo. He entrusted the matter to the Excise Inspector. During cross examination, PW1 admitted that the seal affixed in MO1 was not seen in it. A perusal of the oral evidence of PW1, it is clear that PW1 detected the offence. PW2, the preventive officer attached to Haripad Excise Circle Inspector's office supported the seizure of MO1. The preventive officer deposed that he accompanied PW1 on 21.06.1999 and he attested Ext.P1 mahazar. There is no reason to discard the direct oral

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Crl. Appeal No.1498 of 2004 4

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evidence of PW1 and PW2.

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PW3 deposed that PW1 entrusted MO1 and

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the accused at Excise Range office, Karthikappally and he registered Ext.P3, the crime and occurrence report. Subsequently, the seized article and the accused were produced before the court. Ext.P4 is the Thondi List. The sample was produced before the court as per Ext.P5 requisition. PW4 did not support the prosecution case. PW5 completed the investigation and laid charge before the court. The seized articles were examined in the chemical examination lab and obtained Ext.P6 report. In Ext.P5, sample seal were provided. Ext.P6 chemical examination report shows the sample contained 31.56% of ethyl alcohol. Even though, the appellant submitted that there is inconsistency with regard to the seizure, but the trial court noticed the contradictory portion and appreciated that evidence in the correct perspective. I do not find any illegality or infirmity in the credibility of seizure. Therefore, the conviction under Sec.8(1) of the Kerala Abkari Act is only to be confirmed.

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Considering the nature of offence, the

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Crl. Appeal No.1498 of 2004 5

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circumstances under which it was committed and the fact that no criminal antecedents were reported against the appellant, I modify the sentence imposed by the trail court. For that, I rely the decision reported in Sasikumar v. State of Kerala [2012 (4) KLT 867] . Accordingly, the appellant is sentenced to imprisonment for three months and fine of Rs.1,00,000/- (Rupees one lakh only) in default of payment of fine, simple imprisonment for one month. The appellant is also directed to surrender before the trial court to suffer the sentence. Failing which, the learned Sessions Judge shall issue non bailable warrant against the appellant. The period of detention undergone by the accused during investigation, enquiry or trial shall be set off against the terms of imprisonment imposed on him.

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The appeal is disposed of accordingly.

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Sd/-

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P.D. RAJAN, JUDGE

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/ True Copy /

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NS/12/02/2016

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P.A. To Judge

Leven v. State of Kerala

Case brief

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Leven v. State of Kerala

Case brief

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