Partly allowed

Raju v. State of Kerala

Kerala HC4 Feb 2016CRL.A/496/2005

Case brief

AI extract

What is this about?

The Additional Sessions Court convicted the appellant for possession of arrack under Sec. 8(1) of the Kerala Abkari Act. The High Court upheld the conviction and the one-lakh fine, modified the imprisonment to three months with a default clause of 15 days, and allowed the appeal in part.

What did the court decide?

Appeal allowed in part; conviction and fine confirmed; sentence modified to three months rigorous imprisonment with Rs.1,00,000 fine and 15 days simple imprisonment in default.

Raju Vs State of Kerala — Service and Employment | 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 4TH DAY OF FEBRUARY 2016/15TH MAGHA, 1937

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CRL.A.NO. 496 OF 2005 ( )

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AGAINST THE JUDGMENT IN SC NO.46/2003 OF ADDITIONAL SESSIONS COURT, FAST TRACK COURT NO.III (ADHOC), MANJERI DATED 25-02-2005

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APPELLANT(S)/ACCUSED:

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RAJU S/O. THOTTUMPALLATH CHANDRAN, AMARAMBALAM AMSOM DESOM, NILAMBUR TALUK, SUKUMARAN.

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BY ADVS.SRI.M.P.PRABHANANDAN

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SRI.SOJAN MICHEAL SRI.GILBERT GEORGE CORREYA SRI.J.VIMAL

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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 04-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.D. RAJAN, J.

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Crl. Appeal No.496 of 2005

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Dated this the 4^th Day of February, 2016

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J U D G M E N T

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The appellant was charge sheeted in S.C. No.46 of 2003 on the file of the Additional Sessions Court (Fast Track-III), Manjeri for the offence punishable under Sec.8(1) of the Kerala Abkari Act. The charge against the appellant was that on 21.02.2001 at 9.00 p.m., he was found in possession of 7 litres of arrack near the house of one Anchery Balan, Uppuvalli - Pookottumpadam Panchayath. The Preventive officer, Special Squad, Malappuram, seized the arrack, brought him to the Excise Range office, Nilambur and registered the crime as Crime No.8 of 2001. After completing the investigation, the Excise Range officer, Nilambur laid charge before the Judicial First Class Magistrate Court, Nilambur, which was committed to Sessions Court. From there it was made over to Additional Sessions Court-III, Manjeri.

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Crl. Appeal No.496 of 2005 2

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During trial, prosecution examined PW1 to PW5 and marked Exts.P1 to P9. The incriminating circumstances brought out in evidence were denied by the accused while questioning him, but he did not adduce any defence evidence. The learned Additional Sessions Judge convicted him and sentenced him to rigorous imprisonment for two years and a fine of Rs.1,00,000/(Rupees one lakh only) with default sentence of three months. Being aggrieved by that, the accused preferred this appeal.

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Heard both sides. The main contention advanced by the learned counsel for the appellant is that there is no independent corroboration in the seizure. There was no proper sampling and the independent witnesses did not sign the label. Therefore, the appellant is entitled to get the benefit of doubt.

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The contraband article was seized by PW1 while he was conducting patrol duty within his jurisdiction. His oral evidence shows that while he was proceeding through the road from Uppally to

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Crl. Appeal No.496 of 2005 3

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Pookkottupadam, the appellant was found carrying a big shopper. On seeing this, PW1 intercepted him and inspected the big shopper in which, he found a cannas and 7 litres of arrack in it. The appellant was arrested and the contraband articles were seized. He took a sample and sealed the sample at the place of occurrence. Accused and PW1 signed in the label and affixed it in the sample. For that, he prepared Ext.P1 mahazar. MO1 is the cannas and MO2 is the big shopper. Ext.P2 is the arrest memo and Ext.P3 is the arrest notice. The contraband articles and accused were entrusted to the excise guard. PW2 supported the evidence of PW1.

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The independent witness PW3 present there

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admitted his signature in Ext.P1 Mahazar. Though admitted his signature in Ext.P1, he categorically stated that he had not seen the seizure of arrack from the possession of the appellant. PW4 Excise Guard, Excise Range Office, Nilambur admitted that PW1 entrusted MO1 and MO2 at the Nilambur Excise Range office. The appellant was under his custody till the arrival of the

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Crl. Appeal No.496 of 2005 4

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Excise Inspector. PW5, the Excise Inspector deposed that on 22.02.2002, he re-registered the crime. The sample was forwarded for chemical analysis. Ext.P5 is the chemical analysis report. OR No.1 of 2001 was registered by PW1 and Ext.P7 is the crime and occurrence report. Subsequently, it was re-registered as Crime No.8 of 2001. The list was marked as Ext.P9 and the forwarding note was marked as Ext.P8.

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On a perusal of the evidence of PW1 to PW5, it is found that the articles seized were safely produced in the office of the Excise Inspector, Nilambur after taking proper sample. The accused and PW1 affixed their seal in the sample. The sample was sealed and marked with the same mark which was entered in appropriate column of Ext.P8. The appellant has no dispute with regard to that aspect. Even though the appellant contended that there is no independent corroboration to the seizure, the fact that signature of the independent witnesses were not obtained in the label is not an illegality as per the Excise Manual. As per Rule 34 of the Excise Manual, the accused and

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Crl. Appeal No.496 of 2005 5

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Excise Inspector shall affix their signature in the label. If that be the position, I cannot find any illegality or irregularity in the seizure procedure and the investigation of the case. PWs.1,2,4 and 5 happened to be the members of the excise department is not a ground to discard their direct oral evidence. No circumstances are brought before me to disbelieve their evidence. Hence the conviction under Sec.8(1) of the Kerala Abkari Act is confirmed.

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Learned counsel for the appellant submitted that no criminal antecedents were proved against the accused and the quantity of arrack seized from the appellant is also very meagre. He relied on the decision of the Apex Court in Sasikumar v. State of Kerala [ 2012 (4) KLT 867] in which, it was held that leniency must be shown in imposing the fine. Considering the nature of offence and the character of the offender, I modify the sentence as follows:

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The appellant is sentenced to undergo imprisonment for three months and fine of

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Crl. Appeal No.496 of 2005 6

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Rs.1,00,000/- (Rupees one lakh only), in default of payment of fine, simple imprisonment for 15 days. The period of detention undergone by the accused during trial, investigation and enquiry shall be entitled to set off.

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Accordingly, this appeal is allowed in part.

Sd/-

P.D. RAJAN JUDGE

/ True Copy /

NS/04/02/2016

P.A. To Judge

Raju v. State of Kerala

Case brief

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Raju v. State of Kerala

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