Partly allowed

Abdulrahiman v. State of Kerala

Kerala HC15 Jan 2016CRL.A/1958/2004

Case brief

AI extract

What is this about?

The judgment in a criminal appeal under the Kerala Abkari Act involving possession of arrack. The High Court confirmed the conviction but modified the sentence due to the appellant's advanced age and ill health, allowing him to surrender to serve the reduced term.

What did the court decide?

Conviction confirmed, but sentence reduced to rigorous imprisonment for three months and fine of Rs. One lakh.

Abdulrahiman 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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FRIDAY, THE 15TH DAY OF JANUARY 2016/25TH POUSHA, 1937

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CRL.A.No. 1958 of 2004 (A)

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AGAINST THE JUDGMENT IN SC 288/2004 of III ADDITIONAL SESSIONS COURT (ADHOC), THRISSUR

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APPELLANT/ACCUSED::

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ABDULRAHIMAN KUNIYIL HOUSE, ALOOR DESOM, ALOOR CANAL BUND MUKUNDAPURAM TALUK.

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BY ADV. SRI.A.C.DEVY

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RESPONDENT(S)/STATE::

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STATE OF KERALA EXCISE INSPECTOR, IRINJALAKUDA RANGE - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM KOCHI-31.

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R1 BY ADV. PUBLIC PROSECUTOR DHANESH MATHEW MANJOORAN

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-012016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.D.RAJAN, J

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......................................... Crl.A.No.1958 of 2004 ....................................... Dated 15^th January, 2016

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JUDGMENT

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The appellant was charge sheeted in S.C.268 of 2004 before Additional Sessions Judge, Fast Track I,

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Thrissur for having committed offence punishable under Section 8(1) and (2) of Abkari Act. The charge against the appellant was that on 11.7.1999 at 12.10 pm, accused was found in possession of five litres of arrack in a jerry can at canal bund on the norther side of the house of Kaithapra Thomas in Aloor Village, Mukundapuram Taluk. The Excise preventive Officer, Irinjalakuda intercepted the appellant, inspected the can and detected the offence. Thereafter he registered a crime and occurrence report and after completing the investigation, Excise Inspector, Irinjalakuda laid final report before Judicial First Class Magistrate, Irinjalakuda. From there, the case was committed to Sessions Court.

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During trial, prosecution examined seven

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witnesses and Ext.P1 to P6 were marked as documentary

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Cra 1958/2004 2

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evidence and admitted MO1 in evidence. The

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incriminating circumstances brought out in evidence were denied by the accused while questioning him. He was also heard under Section 232 Cr.P.C. He did not adduce any defence evidence. The Additional Sessions Judge convicted the accused under Section 8(1) and (2) of the Abkari Act and sentenced him to rigorous imprisonment for one year and fine of Rs.One lakh and in default, rigorous imprisonment for three months. Being aggrieved by that, he preferred this appeal.

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Learned counsel appearing for the appellant contended that the place of occurrence was not properly proved in the trial court. The independent witness present there did not support the prosecution case. When there is doubt with regard to the place of occurrence, the accused is entitled to get the benefit of doubt. Learned Public Prosecutor opposed the above argument.

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The occurrence was deposed by PW1 who was the Preventive Officer, Excise Range, Irinjalakuda. The evidence of PW1 shows that on 11.7.1999, he was

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Cra 1958/2004 3

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conducting patrol duty, at 12.30 pm he arrived at the place of occurrence. At that time, the appellant was found carrying MO1 kannas and walking through side of canal which is in front of the house of Kaithapra Thomas. Another person was also following the appellant. Both persons were intercepted and questioned about the content in MO1. During inspection, it was revealed that MO1 carried five litres of arrack and he arrested the accused and took sample of 300 ml in a bottle. The arrack was seized after preparing Ext.P1 mahazar. Ext.P2 is the arrest memo. MO1 is the jerry can containing arrack. Reaching at the excise office, he registered a crime and occurrence report, Ext.P3 is the occurrence report. Ext.P4 is the property list. Ext.P5 is the scene mahazar. PW4, another Preventive Officer supported the evidence of PW1. He also gave a similar version given by PW1. He also identified the accused and MO1. PW4 also attested Ext.P1 mahazar. It is clear from Ext.P1 that the canal lies towards north south and the branch of the canal is lying east west. There is a diversion to the canal at the

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Cra 1958/2004

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place of occurrence. A close scrutiny of the evidence of PW1 and 2 makes it clear that at the place of occurrence there is a diversion to the canal towards east west and the appellant was arrested near the house of Kaithapra Thomas. Trial court appreciated the evidence of PW1 and 2 in the right perspective.

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The independent witnesses PW2 and 3 did not support the prosecution case. PW2 and 3 attested Ext.P1 seizure mahazar. But they did not see the seizure of MO1. The Village Officer, Aloor was examined as PW7, who prepared Ext.P7 site plan. As per Ext.P7, from the northern side of the main canal starts the bund canal. He is also not familiar with the height of the culvert at the place of occurrence. PW5 is also the Village Officer, Aloor. He identified the signature in Ext.P7. PW6 conducted the investigation and forwarded the sample to the chemical examiner's lab through court. Ext.P8 is the Chemical Examination result. From the evidence of prosecution witness, what is seen is that the occurrence was supported by only the official witness. PW2 and 3

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Cra 1958/2004

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who are independent witnesses, admitted the attestation of Ext.P1. In my opinion, the court below appreciated the evidence and I find no illegality in that finding. The only contention put forward by the appellant was that there was a culvert at a height of 1.5 metres and he could not identify it. The relevant questions were not asked to the independent witnesses and also to the official witness. Unless and until that point is not confronted with the witness, I cannot appreciate that position. There is no illegality in the findings of the court below. Therefore the conviction under Section 8(1) and (2) of the Abkari Act is confirmed.

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The sentence is purely the discretion of the trial court. The policy of wide discretion in the matter of punishment has to be considered according to the context in the alleged offence. While imposing sentence, court need to adopt suitable measures to resolve that problem. The proportion between crime and punishment is relevant. The learned counsel appearing for the appellant contended that the accused is now 86 years old and that

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Cra 1958/2004

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he is suffering from various ailments and is unable to walk. If that be so, the sentence imposed needs to be modified. Sentence should be reasonable, neither too harsh nor too lenient. Considering the magnitude of the offence and the circumstances under which it was committed, appellant is sentenced to imprisonment for three months and pay a fine of Rs.One lakh and in default, simple imprisonment for 15 days. Relied the decision in Sasikumar V. State of Kerala (2012(4) KLT 867). Appellant is directed to surrender in the trial court to undergo the modified sentence. This appeal is allowed

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in part.

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P.D.RAJAN, JUDGE

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lgk

Abdulrahiman v. State of Kerala

Case brief

What is this about?

What did the court decide?

Abdulrahiman v. State of Kerala

Case brief

What is this about?

What did the court decide?

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