Dismissed

Gangadharan v. State of Kerala

Kerala HC5 Dec 2023Crl.Rev.Pet/1089/2017

Case brief

AI extract

What is this about?

A criminal revision petitioner challenging a conviction for illegal distillation of arrack under the Abkari Act was heard after the original petitioner's death. The Court found no illegality in the conviction despite procedural gaps and hostile witnesses. The sentence of imprisonment was abated due to death, but the fine remains enforceable against assets.

What did the court decide?

Revision petition dismissed; impugned conviction upheld; imprisonment abated due to death; fine of Rs.1,00,000 directed to be recovered from assets of deceased.

Gangadharan Vs State of Kerala — Kerala HC (2023) — LawSathi Research

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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 THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
 TUESDAY, THE 5 TH DAY OF DECEMBER 2023 / 14TH AGRAHAYANA,
 1945

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 CRL.REV.PET NO. 1089 OF 2017

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 AGAINST THE JUDGMENT DATED 24.05.2017 IN CRA 20/2017 OF IST
 ADDITIONAL SESSIONS COURT, KOZHIKODE
 SC 806/2014 OF IIND ADDITIONAL ASSISTANT SESSIONS COURT,
 KOZHIKODE

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REVISION PETITIONER/APPELLANT/ACCUSED:

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 GANGADHARAN, AGED 47 YEARS,
 S/O.KUNHIKKANNAN, THEVAROOLMEETHAL HOUSE, CHAVATT DESOM,
 KOZHUKKALLUR AMSOM, KOYILANDY TALUK.

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 BY ADVS.
 SRI.BINOY VASUDEVAN
 SMT.K.J.ANITHA

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RESPONDENTS/RESPONDENTS/COMPLAINANT/STATE:

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1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.

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2 THE EXCISE INSPECTOR, KOYILANDY EXCISE RANGE-673101.

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SMT.NIMA JACOB, PUBLIC PROSECUTOR

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 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
 HEARD ON 05.12.2023, THE COURT ON THE SAME DAY DELIVERED
 THE FOLLOWING:

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Crl.R.P No.1089 of 2017 2

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O R D E R

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This revision is at the instance of the accused in SC No.806 of 2014 on the file of IInd Additional Assistant Sessions Judge, Kozhikode, assailing the judgment in Crl.Appeal No.20 of 2017 on the file of Ist Additional Sessions Court, Kozhikode, which upheld his conviction under Section 55(g) of the Abkari Act, though the sentence was modified and reduced to certain extent.

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Prosecution case is that on 19.06.2013 at 06.30 p.m., PW6, the Excise Inspector, Koyilandy Excise Range, and party while conducting patrolling duty, got reliable information that the revision petitioner was engaged in illegal distillation of arrack at his residential house. After sending search memo to court, PW6 and party proceeded to that house, and found the accused there with preparations for distilling arrack. The utensils along with the wash were seized, and the revision petitioner was arrested at the spot. After completing all the legal formalities, the contraband and the articles seized were produced before the Excise Office along with the revision petitioner. On completing investigation,

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charge-sheet was laid against the revision petitioner under Section 55(g) of the Abkari Act.

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On appearance of the revision petitioner before the trial court, charge was framed under Section 55(g) of the Abkari Act, to which he pleaded not guilty. Thereupon, prosecution examined PWs 1 to 6, marked Exts.P1 to P11 and identified MOs 1 to 4 to prove its case. On closure of the prosecution evidence, the revision petitioner was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record, but no defence evidence was adduced.

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On analysing the facts and evidence and on hearing the rival contentions from either side, the trial court found the revision petitioner guilty under Section 55(g) of the Abkari Act and he was sentenced to undergo simple imprisonment for two years and fine of Rs.1,00,000/-, with a default sentence of simple imprisonment for a further period of one month.

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Aggrieved by the conviction and sentence, the revision petitioner preferred Crl. Appeal No.20 of 2017. The appellate court on re-appraisal of the facts and evidence, found that there

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was no reason to interfere with the conviction of the revision petitioner under Section 55(g) of the Abkari Act, and so partly allowed the appeal by upholding the conviction but modifying and reducing the sentence to simple imprisonment for a period of one year and fine of Rs.1,00,000/-, with a default sentence of simple imprisonment for a further period of two months. Aggrieved by that judgment, the revision petitioner approached this Court with the above revision petition.

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Now this Court is called upon to verify the legality, propriety and correctness of the judgment impugned.

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When the revision petition was taken up for hearing on 10.10.2023, learned counsel for the revision petitioner submitted that the revision petitioner is no more, and sought time to get his legal representatives impleaded to prosecute the matter. But no steps were taken, for the reason that, the whereabouts of the legal representatives could not be obtained. As directed by this Court, learned Public Prosecutor obtained a report from the Excise Inspector, Excise Range Office, Koyilandy, showing the details of the legal representatives of the deceased revision

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petitioner. Learned counsel for the revision petitioner submitted that the legal representatives are not interested to get themselves impleaded to prosecute the matter, and hence the legal representatives were not impleaded.

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Since the revision petitioner is no more, the substantive sentence imposed under Section 55(g) of the Abkari Act will get abated, but the fine amount, i.e., Rs.1,00,000/- will not get abated. So, learned counsel for the revision petitioner sought permission to argue the matter on merit and accordingly she was heard, and heard learned Public Prosecutor also.

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Learned counsel for the revision petitioner is assailing the judgment mainly on two grounds. The original of the search memo was not produced before the trial court, and Ext.P6 is only a carbon copy of the search memo alleged to have been sent to the court, before conducting search in the house of the revision petitioner. Further, there is no independent evidence to corroborate the testimony of PWs 1 and 6. So, according to her, the search and seizure are doubtful.

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On going through the testimony of PW6 - the detecting

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officer, and PW1 - the preventive officer, who has accompanying PW6 at the time of detection, it could be seen that while doing patrol duty, they got reliable information that the revision petitioner was distilling arrack in his house, and after sending search memo to court, they proceeded to his house. True that Ext.P6 search memo is only a carbon copy of the search memo prepared by PW6 before proceeding to the house of the revision petitioner. Since the original was sent to the court, they cannot have any control over the same, after it being sent to the court. May be because the original search memo was not found in the court, the carbon copy might have been substituted by the prosecution.

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Ext.P1 seizure mahazar narrates the procedure followed by PW6 at the time of detection and seizure of the utensils kept by the revision petitioner for brewing illicit arrack. Ext.P2 arrest memo shows that the revision petitioner was arrested at the place of detection itself. Ext.P4 certificate issued by the Village Officer shows that the property belongs to the accused and his wife. Ext.P5 possession certificate issued by PW5 shows that

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building No.VIII/508 belonged to the revision petitioner. MOs 1 to

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4 were seized from that house, in the presence of the revision petitioner.

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Though PWs 2 and 3, the independent witnesses turned hostile to the prosecution, the trial court as well as the appellate court found nothing to disbelieve the testimony of PWs 1 and 6. Hostility of independent witnesses is not a ground to disbelieve the testimony of official witnesses, if it is found reliable and trustworthy as held by this Court in Abdul Rasheed v. State of

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Kerala [2008 (3) KLT 150] . If the testimony of official witnesses is blemishless and free from suspicion and inspires confidence of the court, the hostility shown by ill-motivated independent witnesses is of no consequence. In the case on hand, PWs 2 and 3, though turned hostile to the prosecution, they admitted their signature in Ext.P1 seizure mahazar. So also the testimony of the official witnesses is not liable to be disbelieved on the ground that the independent witnesses not fully supported the prosecution case. (See Vikraman v. State of Kerala [2007 (1) KLT 1010] , Balachandran v. State of

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Crl.R.P No.1089 of 2017 8

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Kerala [2020 (4) KLT 137] & Sasidharan v. State of Kerala

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[2007 (1) KLT 720] ).

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The search and seizure was in the night of 19.06.2013 and Ext.P9 thondy list shows that the seized articles reached the jurisdictional Magistrate court on the very next day. Ext.P10 forwarding note was also prepared on the date of detection itself. Ext.P10 forwarding note reached the court on 20.06.2013 along with the articles seized, and it bears the specimen impression of the seal also. The sample was forwarded from the Magistrate court on 03.07.2013 and it reached the Chemical Examiner’s Laboratory on the very same day. So there is no delay in sending

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the sample for chemical analysis, and there is nothing to show that the despatch of the sample was tampered in any manner.

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Adverting to the facts and circumstances as stated above, this Court finds no illegality or impropriety in the conviction and sentence imposed on the revision petitioner by the appellate court. Hence the revision petition is liable to be dismissed.

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As the revision petitioner is no more, the substantive

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sentence of one year imposed on him, will get abated. But there is fine of Rs.1,00,000/- under Section 55(g) of the Abkari Act, imposed on the revision petitioner. Since he is no more, his assets if any, held by his legal representatives can be proceeded against, for recovering the fine amount. Registry of this Court is directed to transmit the case records forthwith to the trial court to proceed against the legal representatives of the revision petitioner for recovery of the fine amount of Rs.1,00,000/- from the assets of deceased revision petitioner, without further delay.

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With these directions, above revision petition stands dismissed.

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Sd/- SOPHY THOMAS, JUDGE

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DSV/-

Gangadharan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Gangadharan v. State of Kerala

Case brief

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What did the court decide?

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