High Court of Kerala set aside appellant's conviction under Sec.55(a) for possession of arrack, convicting him instead under Sec.8. The five-year sentence was commuted to two years due to age and lack of rationality.
Appellant convicted under Sec.8; sentence reduced to two months imprisonment and fine of Rs.1,00,000.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
WEDNESDAY, THE 2ND DAY OF MARCH 2016/12TH PHALGUNA, 1937
CRL.A.NO. 2083 OF 2004 (B)
AGAINST THE JUDGMENT IN S.C. NO.89 OF 2002 OF ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT NO.1(ADHOC), MANJERI DATED 09-12-2004
APPELLANT(S)/ACCUSED.:
CHAKKALKKAL PAVITHRAN, S/O.KRISHNAN, CHAKALAKKAL HOUSE, KEEZHUPARAMBU, THRIKALAYOOR, MALAPPURAM DISTRICT.
BY ADV. SRI.BABU S. NAIR
RESPONDENT(S)/STATE.:
THE STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, MANJERI EXCISE RANGE - THROUGH THE PUBLIC PROSECUTOR, HIGH CORT OF KERALA, ERNAKULAM, KOCHI-31.
BY PUBLIC PROSECUTOR SRI. N.SURESH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
NS
P.D. RAJAN, J.
Crl. Appeal No.2083 of 2004
Dated this the 2nd day of March, 2016
J U D G M E N T
This appeal is preferred by the accused against
the conviction and sentence in S.C. No.89 of 2002 of the Additional Sessions Judge, (Fast Track-I), Manjeri under Sec.55(a) of the Kerala Abkari Act. The charge against the appellant is that on 20.06.1999 at 4.00 p.m., he was found in possession of five litres of arrack at Thrikkalayur by the Preventive officer, Excise Range Office, Manjeri. He was arrested and the contraband articles were seized. Reaching at the Excise Range Office, he registered the crime. After completing investigation, the Excise Range Inspector, Manjeri, laid charge before the Judicial First Class Magistrate Court-I, Manjeri. Subsequently, the case was committed to Sessions Court, Manjeri. From there, it was made over to Additional Sessions Judge (Fast Track-I).
PW6 and marked Exts.P1 to P8 as documentary evidence.
Crl. Appeal No.2083 of 2004 2
MO1 was admitted as material object. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. The learned Additional Sessions Judge convicted the accused under Sec.55(a) of the Kerala Abkari Act and sentenced him to rigorous imprisonment for five years and fine of Rs.1,00,000/(Rupees one lakh only). In default of payment of fine, rigorous imprisonment for two years. Being aggrieved by that, the accused preferred this appeal.
officer, who was examined in the trial court as PW1. His evidence shows that on 20.06.1999 he was conducting patrol duty and when he reached at Thrikkalayur, the appellant was found carrying MO1 can. Upon suspicion, he inspected MO1 and detected arrack in it. The appellant was arrested and the contraband articles were seized. Ext.P1 is arrest memo, Ext.P2 is the arrest notice and Ext.P3 is the seizure mahazar. He kept the seized
Crl. Appeal No.2083 of 2004 3
article in his custody on the next morning till the arrival of the Excise Inspector. PW2 admitted that he received the material object on the next day. On the basis of that, he registered Ext.P4, the crime and occurrence report. The seized articles were produced before the court. Ext.P5 is the property list and Ext.P6 is the copy of the forwarding note. PW3 also accompanied PW1 for patrol duty.
Crl. Appeal No.2083 of 2004 4
are the excise officials is not a ground to discard their evidence in toto. No circumstances are brought out in evidence during cross examination to discredit the oral evidence of these witnesses. In the absence of any infirmity the oral testimony of these witnesses are admissible. This Court in Gopan V. State of Kerala [2007 (3) KLT 443] held that mere possession of arrack would only attract an offence under Sec.8 of the Kerala Abkari Act. Therefore, the conviction under Sec.55(a) of the Abkari Act is set aside and appellant is convicted under Sec.8(1) and (2) of the Abkari Act.
Crl. Appeal No.2083 of 2004 5
[2012 (4) KLT 867 SC] .
In the result, the appellant is convicted under Sec.8(1) and (2) of the Kerala Abkari Act and sentenced to imprisonment for two months and fine of Rs.1,00,000/(Rupees one lakh only) in default of payment of fine, simple imprisonment for fifteen days. The period of detention undergone by the accused/appellant during trial, investigation and enquiry shall be entitled to set off against the terms of imprisonment.
This appeal is partly allowed as above.
NS/03/03/2016
Sd/- P.D. RAJAN, JUDGE / True Copy / P.A. To Judge
2 issues framed by the court
Whether conviction under Sec.55(a) of the Kerala Abkari Act for mere possession of arrack should stand when Sec.8 is the appropriate provision.
Whether the five-year sentence imposed by the trial court is rational given the age of the appellant and the nature of the offence.
Colour shows how this judgement treated each authority
Gopan V. State of KeralaReferred¶31
Gopan V. State of Kerala [2007 (3) KLT 443]
Sasikumar v. State of KeralaApplied¶34
Sasikumar v. State of Kerala [2012 (4) KLT 867 SC]
2 provisions across 1 enactments
CHAKKALKKAL PAVITHRAN
THE STATE OF KERALA
P.D. RAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
