Dismissed

Achu @ Achuthan v. State of Kerala

Kerala HC17 Jun 2022CRL.A/92/2014

Case brief

AI extract

What is this about?

The High Court dismissed the criminal appeal against conviction and sentence for possession of arrack under the Kerala Abkari Act. The Court upheld the trial court's finding that oral testimony of police witnesses was credible despite hostile attesting witnesses and lack of independent corroboration, relying on precedents regarding police testimony.

What did the court decide?

Appeal dismissed; conviction and sentence confirmed; appellant directed to surrender for execution of sentence.

Achu @ Achuthan Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2022)

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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.G. AJITHKUMAR

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FRIDAY, THE 17^TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944

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CRL.A NO. 92 OF 2014

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AGAINST THE JUDGMENT DATED 17.01.2014 IN S.C.NO.452/2012 OF THE III ADDITIONAL DISTRICT COURT, PALAKKAD/

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II ADDITIONAL MACT, PALAKKAD

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(CP 18/2012 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, PATTAMBI)

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APPELLANT/ACCUSED:

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ACHU @ ACHUTHAN AGED 58 YEARS, S/O.KORAN, AMBALAPARAMBU HOUSE, KOZHIKKATTIRI DESOM, MUTHUTHALA VILLAGE, OTTAPALAM TALUK. BY ADV SRI.R.SREEHARI

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURTOF KERALA, ERNAKULAM, THROUGH EXCISE INSPECTOR, EXCISE RANGE, PATTAMBI, OTTAPALAM TALUK.

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SMT MAYA M.N - P.P

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OTHER PRESENT:

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THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 14.06.2022, THE COURT ON 17.06.2022 DELIVERED THE FOLLOWING:

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Crl.Appeal No.92 of 2014

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JUDGMENT

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This is an appeal under Section 374(2) of the Code of Criminal Procedure, 1973. The appellant stands convicted for an offence punishable under Section 8(2) of the Kerala Abkari Act, 1077 and sentenced to undergo simple imprisonment for

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a term of one year and to pay a fine of Rs.1,00,000/- with a default sentence of simple imprisonment for a term of three months.

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The charge against the appellant was that at about 5.45 p.m. on 19.04.2011, he was found in possession of five litres of arrack on the Muthuthala-Pattambi public road, at Kozhikkattiri junction in Muthuthala village.

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PW1 detected the offence, seized the contraband from the appellant and initiated the case. PW2 was a Preventive Officer, accompanying PW1 for the patrol duty and assisted PW1 in detection of the offence and necessary follow up. PW4 did the investigation and filed the report under Section 50 of the Abkari Act before the Judicial Magistrate of First Class, Pattambi, who committed the case to the Sessions

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Crl.Appeal No.92 of 2014

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Court, Palakkad. The case was eventually made over to the Additional Sessions Court-III, Palakkad, where the trial has taken place.

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PWs.1 to 5 were examined and Exts.P1 to P9 were marked. MO1 was identified as well. In the Section 313 examination, the appellant took the stand that he did not involve in such an offence. No defence evidence was adduced.

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The learned Sessions Judge considered the matter in detail and found that the appellant had committed the offence charged against him. The contention that for want of independent evidence, oral testimonies of PWs.1 and 2 could not be placed reliance on to find that the seizure of the contraband from the possession of the appellant was proved, was not accepted. The further contention of the appellant that having PWs.3 and 5, who are attestors to Ext.P3 seizure mahazar, turned hostile to the case of the prosecution and denounced its case that in their presence only the seizure was effected and the accused arrested, the charge inevitably has to fail. It was further contended that PWs.3 and 5 admitted

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Crl.Appeal No.92 of 2014

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having signed Ext.P3, but stated in court that they signed it at a different place and that improbabilizes the case of the prosecution.

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The above-said contentions were considered in detail by the learned Sessions Judge. The principle laid down by this Court in Abdul Rasheed v. State of Kerala [2008 (3) KLT 150] , where it was held that the reason of prosecution witnesses turning against it does not ipso facto impeach the credibility of other evidence, which stands scrutiny of the cross-examination, was relied on by the learned Sessions Judge and held that the contention could not be accepted. Whether want of independent evidence impedes the court from acting upon the oral testimony of PWs.1 and 2, was also considered in detail by the trial court. It is the trite law that quality and not the quantity is the criteria. Whether official witnesses or not, if their evidence inspires confidence of the court, the same can be acted upon. There is no bar in finding a fact to be proved on the basis of evidence of a single witness in the light of the provisions of Section 134 of the

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Crl.Appeal No.92 of 2014

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Indian Evidence Act, 1872.

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Here, PWs.1 and 2, without any intra or intercontradictions, stated in court regarding the arrest of the accused, seizure of the contraband from his possession and other steps taken to ensure due preparation of documents and production of the accused and contraband in court. While PW1, the Excise Inspector, Excise Range, Pattambi, and PW2, the Preventive Officer, on patrol duty, saw the appellant walking along the Muthuthala-Pattambi road carrying a plastic container. He was waylaid and questioned. On finding that the plastic jar with him contained arrack, they proceeded to arrest him by preparing Ext.P1 arrest memo and Ext.P2 intimation memo, and seized the contraband, after preparing representative samples under Ext.P4.

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The Apex Court in Karamjit Singh v. State (Delhi Administration) [AIR 2003 SC 1311] held that,-

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“The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied

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Crl.Appeal No.92 of 2014

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upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down.”

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In this case, there is nothing in evidence to show

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that PW1 has in any way biased. Therefore, his evidence as corroborated by the evidence of PW2 and the documentary evidence can safely be relied on.

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The learned counsel appearing for the appellant raised a contention that the discrepancy occurred in the direction along which PWs.1 and 2 were travelling at the time of the detection makes their credibility at stake. This aspect has also been considered by the learned Sessions Judge in detail. The road there is indisputably in east-west direction. When PWs.1 and 2 deposed in court that they were travelling in east-west direction and the attending circumstances sufficiently probabilize that version, the trial court cannot be found fault with in turning down the said contention. There is

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no doubt in the case of the prosecution as pointed out by the learned counsel.

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As pointed out above, witnesses to Ext.P3, PWs.3 and 5 did not state in court subscribing to the said fact. However, on detailed deliberations and appreciation of the evidence on record, it can be seen that occurrence of the incident as narrated by PWs.1 and 2 is satisfactorily proved.

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Yet another contention raised by the learned counsel appearing for the appellant is that there is a missing link in the process of forwarding the sample to the Chemical Examiners' laboratory, and therefore, the correctness of the analysis report, Ext.P9 is not sure. The learned counsel contends that the finding entered into by the trial court in that regard is wrong. The incident had occurred on 19.04.2011. It is seen that after the arrest of the accused and the seizure of the contraband, PW1 registered the crime as per Ext.P4, crime and occurrence report on the same day. Those documents and the contraband, including sample, were forwarded to the jurisdictional Magistrate on that day itself.

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Crl.Appeal No.92 of 2014

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The endorsement on the documents shows that the contraband and the sample were directed to be produced on the next day before the court. Ext.P6 property list would carry the endorsement that the contraband and the sample were received in court on 20.04.2011 itself. The incidents transpired thereafter for sending the sample to the chemical examiners' laboratory and get the report were taken place in the court. The learned Sessions Judge, after verifying all the records and evidence entered a finding that the sample of the contraband produced in the court along with Ext.P6 property list was in the custody of the court till it was sent to the Chemical Examiner. In the light of the said finding, which are supported by the documents, the contention of the learned counsel is not able to be accepted. From the evidence on record, it can well rule out any possibility of tampering with the sample prepared by PW1 at the place of occurrence and ultimately examined by the Chemical Examiner resulting in the issuance of Ext.P9 report. It is noted in Ext.P9 that the sample was received intact and the seal on it was tallied with

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Crl.Appeal No.92 of 2014

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the samples seal provided. In the light of the said evidence, I do not find any reason to find fault with the findings entered into by the Sessions Judge, so as to convict the appellant for the offence under Section 8(1) read with (2) of the Abkari Act.

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It is proved beyond doubt that the appellant was in possession of 5 litres of arrack, which is prohibited under Section 8(1) of the Abkari Act. His conviction is therefore legal and sustainable. I find no reason to interfere with the conviction entered into by the learned Sessions Judge.

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The appellant was sentenced to undergo simple imprisonment for a period of one year and also to pay a fine of Rs.1 lakh. An offence under Section 8(2) of the Abkari Act is punishable with imprisonment for a term of 10 years and a minimum fine of Rs.1 lakh. Having considered the matter in detail and hearing the appellant, I find no reason to say that the sentence imposed on the appellant is harsh or disproportionate.

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Hence, the appeal is dismissed by confirming the conviction and sentence as per the impugned judgment dated

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17.01.2014 in S.C.No.452 of 2012 of the Additional Sessions Court-III, Palakkad. The appellant shall surrender before the Additional Sessions Court-III, Palakkad for the execution of the sentence on or before 18.07.2022.

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Sd/-

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P.G. AJITHKUMAR, JUDGE

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dkr

Achu @ Achuthan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Achu @ Achuthan v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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