Partly allowed

Shaji & Another v. State of Kerala

Kerala HC4 Oct 2016CRL.A/510/2009

Case brief

AI extract

What is this about?

This criminal appeal challenged the conviction and sentence for brewing arrack under the Abkari Act. The High Court upheld the conviction due to corroborated evidence regarding seized contraband and wash but modified the sentence to rigorous imprisonment for six months and a fine of Rs.1,00,000.

What did the court decide?

Conviction maintained; sentence modified to rigorous imprisonment for six months and fine of Rs.1,00,000.

Shaji & Another 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 B.KEMAL PASHA

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TUESDAY, THE 4TH DAY OF OCTOBER 2016/12TH ASWINA, 1938

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CRL.A.No. 510 of 2009 (C)

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AGAINST THE JUDGMENT IN SC 808/2007 of ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR DATED 11-02-2009

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APPELLANT(S)/ACCUSED NO.1,2::

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1. SHAJI, S/O.GEORGE MONIKKA, PUTHENPURAYIL HOUSE, MANNAMANGALAM.

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2. RAJAN, S/O.SUKUMARAN, KUNIYANPARAMBIL HOUSE, MANNAMANGALAM.

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BY ADV. SRI.A.C.DEVY

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RESPONDENT(S)/STATE::

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THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.

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R BY ADV. PUBLIC PROSECUTOR C.S . HRITWIK

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B.KEMAL PASHA, J.

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Crl.Appeal No.510 of 2009

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Dated this the 4^th day of October, 2016

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JUDGMENT

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Appellants are A1 and A2 in Sessions Case No.808/2007 of the Additional Sessions Court, Adhoc-I, Thrissur, who stands convicted under Section 8(2) of the Abkari Act and each of whom stands sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-, in default to undergo simple imprisonment for two months.

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The prosecution case is that on 13.11.2004 at 5.45 p.m., the appellants along with A3 and A4 were found engaged in brewing arrack at the portion adjacent to the forest land at Mannamangalam, in contravention of the provisions of the Abkari Act.

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The offence was detected by PW3 Sub Inspector of Police, Ollur. On getting information regarding the brewing of arrack by the appellants and the other accused he along with the Police party went over there. On seeing

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Crl.Appeal No.510 of 2009 2

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the Police party, they attempted to run away from the spot. A1 and A2 who were the appellants herein could be apprehended. The other two accused had allegedly ran away. Utensils and implements for brewing arrack were found at the spot. 30 liters of arrack contained in 35 litres capacity can, could be seized through Ext.P1 mahazar. Samples were drawn. The appellants were placed under arrest. On reaching the Police Station, PW3 registered the crime through Ext.P3 FIR. The properties were produced before the Court through Ext.P4 property list. Forwarding note was furnished, the copy of which is Ext.P5.

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Subsequently, on 12.05.2016, PW4 Sub Inspector of Police, Ollur placed A4 under arrest. PW6 Circle Inspector of Police, Ollur conducted the investigation. A3 was also placed under arrest. PW5 Sub Inspector of Police, Ollur completed the investigation and filed the final report on getting Ext.P6 certificate of chemical analysis, which shows that the samples contained 45.08, 45.18 and 45.345% by volume of ethyl alcohol.

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Crl.Appeal No.510 of 2009 3

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On the side of the prosecution, PWs 1 to 6 were examined, Ext.P1 to Ext.P7 were marked, and MOS 1 to 7 were identified. No defence evidence was adduced. The court below acquitted A3 and A4. The court below found the appellants guilty of the offence punishable under Section 8(2) of the Abkari Act, convicted them thereunder and sentenced them as aforesaid.

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Heard the learned counsel for the appellants

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and the learned Public Prosecutor.

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The learned counsel for the appellants have argued that no contraband was seized from the possession of the appellants and therefore, they could not have been convicted and sentenced for the offence under Section 8(2) of the Abkari Act. It has also been argued that the appellants were not properly identified.

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PW3 has clearly narrated in detail with regard to the incident. According to him, he examined the contraband and ascertained that it was arrack by smelling and tasting it. Samples were drawn. Both the appellants were placed under arrest at the spot. The evidence of

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Crl.Appeal No.510 of 2009 4

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PW3 is fully corroborated by the evidence of PW2 Police Constable who was present along with PW3. According to PW3 and PW2, apart from the implements for brewing arrack, 3000 litres of wash was also found. Gas cylinder, stove with burner, large vessels, hose etc could also be seized. Both PWs 2 and 3 have identified all the material objects before the court below. On going through the evidence of PWs 3 and 2, this Court is satisfied that there is absolutely nothing to disbelieve PWs 3 and 2.

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According to PW, the properties in the case were produced before court through Ext.P4 property list. Ext.P4 property list is dated 13.11.2004. The incident had occurred at 5.45 p.m on 13.11.2004. The property list was accepted by the court on 15.11.2004. Even though the learned counsel for the appellants have pointed out that there is a delay of two days in the production of the properties before the court, it is evident that the delay was at the most for one day. In a serious case like this, were huge quantities of contraband, wash and other implements are involved, the delay of one day is

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Crl.Appeal No.510 of 2009 5

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negligible.

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From the evidence, it has clearly come out that the contraband involved is arrack. The same has been spoken to by PWs 3 and 2. Ext.P6 certificate of chemical analysis shows the presence of huge quantity of ethyl alcohol in the samples. Considering all the above, this Court is of the view that there is absolutely nothing to interfere with the conviction rendered by the court below.

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Regarding sentence, the learned counsel for the appellants has canvased for leniency in the question of sentence. Considering the quantity of contraband involved, this Court is of the view that a sentence of rigorous imprisonment for six months each, and to pay a fine of Rs.1,00,000/- each, in default to undergo a sentence of simple imprisonment for one month each will meet the ends of justice in this case.

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In the result, this Crl. Appeal is allowed in part by maintaining the conviction and by modifying the sentence as follows:

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Each of the appellants is sentenced to

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Crl.Appeal No.510 of 2009 6

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undergo rigorous imprisonment for six months and to pay a fine of Rs.1,00,000/-, in default to undergo simple imprisonment for one month.

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It is made clear that the appellants are entitled to set off, of the period of detention, if any, undergone by them in connection with the investigation, inquiry and trial of this case, under Section 428 Cr.P.C.

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SD/- B.KEMAL PASHA JUDGE

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//TRUE COPY//

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P.A. TO JUDGE

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AD/05/10/16

Shaji & Another v. State of Kerala

Case brief

What is this about?

What did the court decide?

Shaji & Another v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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