Partly allowed

Divakaran v. State of Kerala

Kerala HC25 Oct 2016CRL.A/467/2009

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal in part, upholding the conviction under the Abkari Act for transporting arrack but modified the rigour imprisonment to simple imprisonment of 20 days while maintaining the fine.

What did the court decide?

Conviction maintained; sentence modified to simple imprisonment for 20 days and fine of Rs.1,00,000/- in default of simple imprisonment for 15 days.

Divakaran Vs State of Kerala — Cheque Dishonour | 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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TUESDAY, THE 25TH DAY OF OCTOBER 2016/3RD KARTHIKA, 1938

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CRL.A.No. 467 of 2009 ( )

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AGAINST THE JUDGMENT IN SC 119/2007 of ADDL. DIST. COURT (ADHOC)III, PATHANAMTHITTA DATED 23-01-2009

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CP 216/2006 of JUDICIAL FIRST CLASS MAGISTRATE COURT, THIRUVALLA

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APPELLANT(S)/ACCUSED:

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DIVAKARAN, AGED 68 YEARS, S/O.VELAYUDHAN, KIZHAKKEPPARAYAKKULATHU VEEDU, PADINJATHOTTATHARA MURI, KUTTOOR VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT.

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BY ADV. SRI.V.SETHUNATH

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RESPONDENT(S)/COMPLAINANT/STATE:

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

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R BY SENIOR PUBLIC PROSECUTOR SRI. ALEX M. THOMBRA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B.KEMAL PASHA, J.

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Crl.Appeal No.467 of 2009

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Dated this the 25^th day of October, 2016

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JUDGMENT

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Appellant is the accused in Sessions Case No.119/2007

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of the Additional Sessions Court Adhoc-III Pathanamthitta, who stands convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-, in default, to undergo rigorous imprisonment for three more months.

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The prosecution case is that on 31.07.2006 at 1.00 p.m., the accused was found transporting 2 litres of arrack in a 5 litres capacity jerry can through the road near the canal in Kuttoor village, Thivuvalla taluk, in contravention of the Provisions of the Abkari Act.

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The offence was detected by PW2 Preventive Officer of Thiruvalla Excise Range. He placed the accused under arrest through Ext.P2 arrest memo and seized the contraband through

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Ext.P3 mahazar. A sample of 200ml was drawn from the

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contraband. He produced the accused along with the

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Crl.Appeal No.467 of 2009 2

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contraband, sample and records at the Thiruvalla Excise Office. PW4 Excise Inspector, Thiruvalla registered Ext.P4 crime and occurrence report. He produced the properties before Court through Ext.P6 property list. Forwarding note was furnished, the copy of which is Ext.P7. PW5 Excise Inspector conducted the investigation and filed final report, on getting Ext.P8 certificate of chemical analysis which shows that the sample contained 44.82% by volume of ethyl alcohol.

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On the side of the prosecution, PWs 1 to 5 were

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examined, Ext.P1 to Ext.P8 were marked, and MO1 was identified. No defence evidence was adduced. The court below found the appellant guilty of the offence punishable under Section 8(2) of the Abkari Act, convicted him thereunder, and sentenced him as aforesaid.

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Heard the learned counsel for the appellant and the

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learned Senior Public Prosecutor.

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The learned counsel for the appellant has argued that

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there is no sufficient evidence to connect the accused with the

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crime, and the conviction and sentence passed by the court

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Crl.Appeal No.467 of 2009 3

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below are not legally sustainable. It has also been argued that independent witnesses or the attestors of Ext.P3 mahazar have not been examined and therefore, the said inaction on the part of the prosecution is hit by the decision of the Apex Court in

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A.Tajudeen v. Union of India [2015 (4) SCC 435].

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PW2 has proved the incident. The evidence of PW2 is

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fully corroborated by the evidence of PW3 Excise Guard who had accompanied with PW2. It has clearly come out that a sample of 200ml drawn from the contraband. PW2 has produced the accused along with the contraband, sample and records at the Excise Office, Thiruvalla. PW4 Excise Inspector registered Ext.P4 crime and occurrence report.

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According to PW4, the contraband was produced immediately before court. Ext.P6 is the property list which shows that the sample of 200ml and the can containing 1.800 litres of arrack were produced before court on 31.07.2006 itself. Ext.P7 is the copy of the forwarding note, which contains a specimen impression of sample seal. PW1 was the Property Clerk, who proved Ext.P1 extract of the property register, which

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Crl.Appeal No.467 of 2009

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shows that the contraband and sample were produced before court on 31.07.2006 itself.

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The impugned judgment clearly shows that the independent witnesses in the mahazar who were cited by the prosecution as charge witnesses could not be examined since they were not available. The judgment clearly shows that summons were issued to the said witnesses and the summons could not be served and the same were returned with the endorsement that both the said witnesses were working abroad. Over and above it, the certificates issued by the Village Officer also showed that the said witnesses were working at Sharjah and they were not available for examination. According to the learned counsel for the appellant, the certificate allegedly issued by the Village Officer were not marked in evidence and therefore, the court below ought not to have relied on such documents.

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The aforesaid certificates were allegedly issued by the Village Officer for assisting the court to have a satisfaction that those witnesses were not available for examination. Such

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Crl.Appeal No.467 of 2009 5

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certificates were in fact not necessary at all. The court below could have well relied on the endorsements on the summons

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issued to those witnesses. The certificates issued by the Village Officer are not documents made use of by the prosecution as evidence against the accused. The accused is not prejudiced in any manner in not marking those certificates issued by the Village Officer showing the non-availability of the attestors of the mahazar. Matters being so, this is not a case, which is hit by the decision in A.Tajudeen (supra).

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On going through the entire records, this Court is satisfied that all statutory formalities were correctly and rightly complied with in the matter and there is absolutely nothing to interfere with the conviction passed by the court below.

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Regarding sentence, the learned counsel for the

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appellant has pointed out that the accused is age old and above

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Considering the old age of the appellant and the small quantity of contraband involved, this Court is satisfied that the appellant is entitled to leniency in sentence. This Court is satisfied that a sentence of simple imprisonment for 20 days, and

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Crl.Appeal No.467 of 2009 6

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to pay a fine of Rs.1,00,000/-, in default to undergo simple imprisonment for fifteen more days, will meet the ends of justice

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in this case.

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In the result, this Crl. Appeal is allowed in part by

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maintaining the conviction and by modifying the sentence as follows:

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The appellant is sentenced to undergo simple imprisonment for 20 days, and to pay a fine of Rs.1,00,000/-, in default, to undergo simple imprisonment for fifteen more days.

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It is made clear that the appellant is entitled to set off, of the period undergone by him in custody in connection

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with the investigation, inquiry, and trial of this case, under Section 428 of Cr.P.C.

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Sd/-

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B.KEMAL PASHA JUDGE

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AD/26/10/16

Divakaran v. State of Kerala

Case brief

What is this about?

What did the court decide?

Divakaran v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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