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Gangadharan v. State of Kerala

Kerala HC17 Jul 2019CRL.A/947/2013

Case brief

AI extract

What is this about?

The High Court of Kerala confirmed the conviction of the appellant under Section 8(2) of the Kerala Abkari Act for possession of illicit arrack. The court reduced the sentence from two years to three months of rigorous imprisonment and modified the default sentence for the fine.

What did the court decide?

Conviction confirmed. Jail sentence reduced to rigorous imprisonment for three months. Default sentence reduced to rigorous imprisonment for three months.

Gangadharan Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2019)

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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.UBAID

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WEDNESDAY, THE 17TH DAY OF JULY 2019/26TH ASHADHA, 1941

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CRL.A.No.947 of 2013

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JUDGMENT IN SC 635/2009 of ADDL. SESSIONS COURT (ADHOC-III), THIRUVANANTHAPURAM DATED 31-05-2013

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-------------------

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APPELLANT/ACCUSED :-

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GANGADHARAN, AGED 57 YEARS, S/O.AZARI, MANJADY COLONY, PARASUVAIKKAL DESOM, PARASUVAIKKAL VILLAGE, NEYYATTINKARA TALUK.

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BY ADV. SRI.G.SUDHEER

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RESPONDENT/COMPLAINANT :-

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

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BY SRI.SANTHOSH PETER, SR.PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

CRL.A.No.947/2013

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JUDGMENT

The appellant herein challenges the conviction

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and sentence against him under Section 8(2) of the Kerala Abkari Act (the Act) in S.C.635/2009 of the Court of Session, Thiruvananthapuram. He faced trial before the learned Additional Sessions Judge (AdhocIII), Thiruvananthapuram on the allegation that at about 9 p.m. on 9.9.2008 he was found possessing 2½ litres of coloured illicit arrack in a plastic can. The offence was detected by the Excise Inspector of the Amaravila Excise Range. He arrested the accused on the spot, and seized the contraband article as per a mahazar. On the basis of the arrest and seizure,

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the Excise Inspector registered the crime and

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occurrence report, he conducted investigation, and also submitted final report in court.

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The accused appeared before the learned trial Judge and pleaded not guilty to the charge framed against him. The prosecution examined three

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CRL.A.No.947/2013

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witnesses and proved Exts.P1 to P9 documents in the trial court. The MO1 property was also identified. The accused denied the incriminating circumstances

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when examined under Section 313 Cr.P.C. He did not adduce any evidence in defence. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for two years and to pay a fine

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of Rs.1,00,000/-. Aggrieved by the judgment of conviction dated 31.5.2013, the accused has come up in appeal.

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On hearing both sides and on a perusal of the materials, I find no reason for interference in the findings or the conviction made by the court below

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under Section 8(2) of the Act. Of the three witnesses examined in the trial court, PW2 is the Excise Inspector, who detected the offence, conducted investigation and submitted final report in court. PW3 is the Property Section Clerk of the Judicial First Class Magistrate Court, Neyyattinkara, who received the contraband article as per the orders of

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CRL.A.No.947/2013

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-: 4 :-

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the learned Magistrate. PW1 examined as an

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independent attestor to the mahazar turned hostile.

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PW2 has given evidence proving the arrest of

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the accused and the seizure of a plastic can containing arrack. He has also given evidence regarding the collection of sample. The witness also

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proved the specimen seal affixed on the sample, and the specimen is very well there in the copy of the forwarding note also. As regards seal, PW3 has also given evidence that the seal on the sample tallied with the specimen seal, and it was sent for analysis from the court through an Excise Guard. The name of

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the said Guard is there in the forwarding note and

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also in the analysis report. The report of analysis shows that on analysis, ethyl alcohol was detected in the sample. The seal was identified by PW2 also in evidence. I find no reason to disbelieve him or to reject his evidence. On factual aspects, there is

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the clear evidence of PW2, which stands not

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discredited in evidence.

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CRL.A.No.947/2013

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The detection was made at about 9 p.m. When

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examined in chief, nothing was stated about the presence of light by PW2. But, in cross examination,

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the answer required by the prosecution as regards light was brought out by the learned defence counsel. In cross examination PW2 clearly explained how he

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could see and identify the accused. Thus, the identity of the accused stands proved by the defence itself. I find that the prosecution case stands very well proved. There is nothing to show that the one man show made by PW2 had caused any sort of prejudice to the accused. Everything was done properly and legally by PW2. There is no reason for any sort of doubt regarding the detection process or the investigation process.

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Now, the question of sentence. The accused must be now about 60 years. The detection was made 11 years back. There is no previous conviction of similar nature to the credit of the accused. On a

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consideration of the various aspects, I find that the period of sentence can be reduced to the minimum in

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CRL.A.No.947/2013

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view of Section 354(4) Cr.P.C. There cannot be any

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modification in the fine sentence, but the default sentence can be appropriately modified.

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In the result, the conviction against the appellant under Section 8(2) of the Act in S.C.635/2009 will stand confirmed, and the appeal is disposed of accordingly. However, the jail sentence imposed by the trial court will stand reduced and modified to rigorous imprisonment for three months. The fine sentence is maintained, but the default sentence will stand modified and reduced to rigorous imprisonment for three months. The appellant will surrender before the trial court within three weeks from this date to serve out the modified sentence and make payment of the fine amount voluntarily, on failure of which, steps shall be taken by the trial court to enforce the modified sentence and realise the amount of fine, or enforce the default sentence.

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//TRUE COPY// P.A. TO JUDGE

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Jvt/18.7.2019

Gangadharan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Gangadharan v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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