Kerala High Court
K.P.Shineesh @ Kuttan vs State Of Kerala Rep.By Excise on 29 June, 2012
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
FRIDAY, THE 29TH DAY OF JUNE 2012/8TH ASHADHA 1934
CRL.A.No. 2014 of 2010
----------------------
[AGAINST THE JUDGMENT IN SC.463/2009 of ADDL.SESSIONS COURT (ADHOC)-II,
THALASSERY]
APPELLANT(S)/ACCUSED NO.3:
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K.P.SHINEESH @ KUTTAN,AGED 33 YEARS,
S/O.REGHUNATH,PUTHANPURAYIL HOUSE,ERANHOLI AMSOM
DESOM,THALASSERY TALUK.
BY ADVS.SRI.NIREESH MATHEW
SRI.C.C.THOMAS (SR.)
RESPONDENT(S)/COMPLAINANT:
--------------------------
STATE OF KERALA REP.BY EXCISE
INSPECTOR, EXCISE RANGE OFFICE, IRITTY
KANNUR DISTRICT,REP.BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA,ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.N.SURESH.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-06-2012,
ALONG WITH CRL.A.NOS.2016 OF 2010 AND 1215 OF 2011,THE COURT ON
29.06.2012 DELIVERED THE FOLLOWING:
V.K.MOHANAN, J.
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Crl.A.Nos. 2014 & 2016 of 2010
&
Crl.A.No. 1215 of 2011
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Dated this the 29th day of June, 2012
J U D G M E N T
As the above appeals are arising out of the same judgment and preferred by the different accused in the very same sessions case and the question of facts and law involved are identical, these appeals are heard together and being disposed of by this common judgment.
2. The allegation against the accused is that at about 5.45 a.m. on 7.2.2008 at Kuttupuzha Excise Check Post, the accused were found importing 7084 litres of spirit in 222 plastic cans by concealing the same beneath the onion sacks loaded in a lorry bearing Regn.No.MH-06 AC/7148 and thereby the accused have committed the offence punishable under Section 55(a) of the Abkari Act and consequently, crime No.5 of 2008 was registered in the Iritty Excise Range.
3. On completing the investigation, a report was laid in the Judicial First Class Magistrate Court, Mattannur and thus, C.P.No.38 of 2009 was instituted therein and the learned Magistrate, by his proceedings Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-2:-
dated 3.8.2009 in the above proceedings committed the case to the Sessions Court wherein cognizance was taken for the said offence and made over the same to the Sessions Court, Thalassery as S.C.No.463 of 2009 for trial and disposal. The first accused was in custody from the date of the incident. When the case was taken in the trial court, the first accused was produced and second and third accused were present. Thus, after hearing the prosecution as well as the defence, the learned Judge of the trial court framed a formal charge for the offence punishable under Section 55A of the Abkari Act against the accused and when the same was read over and explained to the accused, they pleaded not guilty and consequently, the trial was proceeded further during which the prosecution adduced its evidence by examining Pws.1 to 13 and producing Exts.P1 to P29 documents. MO1 material object is also produced. Finally, the trial court with the following observations, "However, this Court is not fully satisfied by the investigation team as no significant efforts were put in, in order to find where actually the source of spirit is or to where it had been transporting. It is a serious defect on the part of the investigation officers as they themselves through their disgraced omissions lost a prospective opportunity to trigger out the master brains behind the black lobbies of spirit Mafia. This Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-3:-
Court finds thus the case as discreditable to the investigation department. Yet still, this can't be a reason for refusing the conviction as the crime committed by the accused are complete as according to the explanations of Section 55A of the Abkari Act"
found that all the three accused were found guilty under Section 55(a) of the Abkari Act. On such conviction, all the accused are convicted and sentenced to undergo rigorous imprisonment for six years and to pay a fine of `3 lakhs each under Section 55(a) of the Abkari Act and in default of payment of fine, they are directed to undergo simple imprisonment for further period of one year each. Set off is allowed.
4. Challenging the above finding, conviction and sentence, the first accused, who is undergoing imprisonment, preferred Crl.A.No.1215 of 2011 and accused Nos.2 and 3 respectively filed Crl.A.No.2016 and 2014 of 2010. As the first appellant is undergoing imprisonment and he preferred the appeal from jail, as directed by this Court, the Registry has appointed Advocate Sri.K.S.Arunkumar, as State Brief to prosecute the appeal on behalf of the first accused. Accused Nos.2 and 3 prosecuted their appeal by engaging thereown Advocates and Advocate Sri.Nireesh Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-4:-
Mathew appeared for second accused, who preferred Crl.A.No.2016 of 2010 and the Sr.Counsel Sri.C.C.Thomas appeared for third accused in Crl.A.No.2014 of 2010. Learned Public Prosecutor Sri.N.Suresh appeared for and on behalf of the State. Thus, I have heard learned counsel for the appellants as well as the learned Public Prosecutor for the State and I have perused the judgment under challenge.
5. As I indicated earlier, though the prosecution has examined PWs.1 to 13, in order to buttress its allegation regarding the alleged transportation, possession and seizure of the contraband article, they mainly depend upon the evidence of PW1, the then Excise Inspector attached to Excise Division, Office of Kuttupuzha Excise Check Post, who detected the crime and PW2, the then Preventive Officer of Kuttupuzha Excise Check Post, who accompanied PW1 and PW4, the then Commercial Tax Inspector at Kuttupuzha Commercial Tax Check Post and also PW3, who is an independent witness. Regarding the incident, that is allegedly taken place at Kuttupuzha Check Post, the evidence of PWs.1,2 and 4 are more or less identical. According to them, they are the officials Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-5:-
of the Excise Department and Commercial Taxes Department, who conducted inspection of vehicles passing through the said check post and at about 5.45 a.m., a lorry bearing Reg.No.MH-06 AC/7148 came from Kuttupuzha side and they stopped the vehicle at the Check Post and informed the driver about their intention to inspect the vehicle. According to these witnesses, the driver told them that the entire load was onion sacks and those were taken to Calicut and thus, PWs.1,2 and 4 inspected the documents of the said lorry made available by the first accused.
6. As I mentioned earlier, the inspection from the side of the Excise Department was led by PW1, who was accompanied by PW2 and according to them, they pierced an iron rod thrice after removing the tarpolin of the lorry and at that time, some liquid was dropped to the ground and they felt the smell of spirit. According to them, at that time two persons, who were inside the lorry, ran away. First accused, the driver of the lorry was questioned and on further inspection of the lorry, it was found that 222 cans of spirit were kept in the lorry, which are covered by 45 onion sacks. PWs.1 and 2 identified the liquid contained in the above Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-6:-
cans as spirit by tasting and smelling of the same. Each can has the capacity of 35 litres and contents of each can was 32 litres of spirit. When the iron road pierced in one can, about 20 litres of spirit lost and what remained in that can was only 12 litres of spirit. According to PWs.1 and 2, the persons, who ran away from the lorry, are accused Nos.2 and 3 and thus, accused Nos.1 to 3 together were transporting 7084 litres of spirit without any documents.
7. According to PW1, he arrested the first accused from the place of incident and seized 222 cans of spirit and the onion sacks. According to PW1, they inspected the cabin of the lorry on the date of the incident and found, Ext.P9 R.C.Book and Ext.P7 Insurance Certificate and one mobile phone which is identified as MO1. According to PWs.1 and 2, the body of the first accused was searched and recovered Ext.P3 driving licence, Ext.P4 bill for food issued from Neelima Hotel, Chalackudi and Ext.P6 bill for purchasing liquor and also Ext.P5 telephone bill. According to PW1, he took 300 ml. samples of spirit in 375 sample bottle from 222 cans and all those cans and sample bottles are sealed and affixed with label.
Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-7:-
The 222 cans were marked as C1 to C222. The corresponding sample bottles are marked as S1 to S222. PW1 has prepared Ext.P1 seizure mahazar and seized Exts.P3 to P9 documents and MO1 mobile phone and when PW1 was examined, these documents were marked through him and he had also identified MO1. According to PW1, besides PW2, PW4 Commercial Tax Inspector has also witnessed the incident. When PW2 was examined, he had also deposed in terms of the deposition of PW1. Besides the deposition regarding the seizure etc., as stated by PW1, he had also stated that it was he who prepared Ext.P1 seizure mahazar as directed by PW1 and he admitted his signature in Ext.P1. He had also stated about the documents seized by PW1. Both PWs.1 and 2 identified the first accused as the driver of the vehicle seized by them and they stated about the presence of accused Nos.2 and 4.
8. PW4 is the then Inspector, Commercial Tax at the Kuttupuzha Check Post and he had also stated fully supporting the prosecution allegation. As I indicated earlier, he had deposed about the incident that had taken place on 7.2.2008 at about 5.50 a.m. as deposed by PWs.1 and 2.
Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-8:-
According to PW4, he had also inspected the lorry and the driver of the lorry provided the documents with respect to the vehicle. PW4 also has identified the first accused. According to him, the first accused told that the lorry contained load of onion and the driver had furnished him the declarations wherein the load of onion is recorded. The said declaration is identified and marked through him as Ext.P11 series (2 in Nos.). PW4 has also stated that the driver furnished him the copy of the bills, which is marked as Ext.P12 series (2 in Nos.). According to him, he had recorded the same in the check post. He had deposed that at a glance, he was under
the impression that the load contained in the lorry was onion. It is the further deposition of PW4 that the Excise Officials pierced the iron rod into the sacks and thus, the spirit was dropped and thus, the first accused was taken into custody, but the two persons who were inside the lorry, ran away. PW4, in an unequivocal language, stated even during his chief examination that he cannot identify those persons. PW3 is an independent witness examined by the prosecution to prove the seizure of the vehicle as well as the contraband article and the arrest of the accused. When he was Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-9:-
examined, he had deposed in terms of the prosecution allegation and he had identified the first accused as the person who was taken into custody by the Excise Officials who was the driver of the vehicle. He had also admitted his signature in Ext.P1 mahazar, Ext.P2 arrest memo. According to the prosecution, after the arrest of the accused and seizure of the contraband article, PWs.1 and 2 handed over the accused as well as the seized article to PW5, who is the then Excise Range Inspector of Iritty Excise Range. According to PW5, accordingly, he registered Ext.P13 crime and occurrence report, P14 property list. He had also deposed that when he had registered Ext.P13 crime and occurrence report, the owner of the vehicle was arrayed as fourth accused on the basis of the endorsement contained in the R.C.Book. He had also stated that he produced the accused before the court and he had identified the first accused. He had also stated that along with the accused, he produced the property before the court as per Ext.P14 property list. He had also identified MO1 mobile phone as produced before the court on that day. He had also stated that cans and the remnants after the sampling and tarpaulin were produced Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-10:-
before the Assistant Commissioner. He had also stated that when the body mahazar of the lorry was prepared, he was present and thus, the body mahazar of the lorry dated 14.2.2008 was marked as Ext.P15. Ext.P16 inventory was also marked through PW5.
9. PW6 is the brother of the second accused and he was cited and examined by the prosecution to prove that the owner and customer of MO1 mobile phone is the first accused, but he did not support the prosecution case as such. PW7 is the then Motor Vehicle Inspector, Irinjalakuda examined to prove the driving licence of the second accused and thus, Ext.P17 driving licence is marked. PW8 is the then Village Officer of Vilamana Village Office and he had deposed that he had prepared Ext.P18 site plan with respect to the place of occurrence. PW9 is the then Legal Assistant Manager of the Idea Cellular Limited Regional Office at Kochi of the Idea Cellular Phone through whom Ext.P19 call details of MO1 phone is marked. PW10 is another Government official, viz., the Tahsildar of Thalassery through whom Ext.P20 voters list is proved which contained the name of the third accused. PW11 is the then Circle Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-11:-
Inspector, Taliparamba Excise Circle, who undertook the investigation with effect from 11.2.2008. He had deposed before the court that he visited the place of occurrence and prepared Ext.P10 scene mahazar and prepared Ext.P15 body mahazar of the lorry. According to him, on inspection of the lorry, he had siezed Ext.P21 receipt issued by the C.I. Of Police, Bhirur Circle, Chickamaglor, which would show that fine amount for driving the lorry with an excess speed, was realised and the receipt was issued in the name of the third accused. PW11 has also stated that he had filed Exts.P22 and P26 report to include respectively accused Nos.2 and 3 in the array of accused. According to PW11, he had also prepared Ext.P23 property list and produced the materials objects mentioned therein before the court. He had also deposed before the court that he had filed Ext.P24 forwarding note to send the sample for chemical examination. Ext.P25 is the Chemical analysis report which shows that the sample contained ethyl alcohol. Though PW11 claimed that when he prepared Ext.P15 mahazar by which Exts.P11 and P12 series of documents were recovered, PWs.4 and 5 were present, but PW4 has no such case. PW12 is Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-12:-
the then Circle Inspector of Bhirur Circle in Chickkamaglore District, who was examined to show that he had levied a sum of `300/- as per Ext.P21 from the person whose name is mentioned therein. Thus, the prosecution wants to show that the third accused was in the vehicle in question when Ext.P21 was issued. The further investigation was undertaken by PW13, the then Excise Circle Inspector of Taliparamba and he had filed Ext.P27 report to delete the name of the fourth accused, since according to him, no such person is available. Ext.P28 proceedings of the Assistant Excise Commissioner, Kannur and Ext.P29 proceedings of the Special Investigation Team was also marked through PW13. According to PW13, on completing the investigation, he laid the charge in the trial court. These are the evidence and materials referred to and relied on by the learned Judge of the trial court in support of her finding and recording the conviction and sentence against the accused.
10. Sri.K.S.Arun Kumar, learned counsel appearing for the first accused/appellant has submitted that the prosecution has miserably failed to prove the conscious possession of the spirit against the first accused and Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-13:-
from the available records, it can be safely concluded that even if the involvement of the first accused in the crime is accepted as true, his role was only to assist accused Nos.2 and 3 to drive the vehicle from Bombay to Kerala without the knowledge about the concealed contraband item. In support of the above argument, the learned counsel has strongly pointed out that as and when the check post authorities demanded for the inspection of the vehicle and records, he had co-operated with the inspection and it is he who produced the necessary documents to the check post authorities, and he did not try to escape from the spot and thus, this conduct of the first accused would show that he is only an innocent person, who drove the vehicle without proper understanding that the lorry contained the contraband article and he undertook the job under the impression that his duty was to transport the onion sacks. Learned counsel, in order to substantiate the above points, further invited my attention to the depositions of PWs.1,2,5 and stated that they were under the impression that the first accused drove the vehicle without knowing the fact about the concealment of the contraband article and he was the bona Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-14:-
fide driver and he has undertaken the job under the impression that the lorry contained onion sacks only. With respect to the investigation, the learned counsel submitted that investigation was improper and illegal and the seized article had not been produced before the court or before any other competent authority and the prosecution has failed to show that, that much quantity of spirit was seized from the possession of the first accused. According to the learned counsel, the prosecution has not produced any satisfactory evidence to prove the strict compliance in terms of the mandatory provisions contained in Section 53A of the Abkari Act. In support of the above contentions, it is pointed out that Ext.P16 inventory was prepared by the Excise Inspector, who is not an authorised and competent officer in view of Section 53 A. It is the alternate submission of the learned counsel that from the date of arrest of the first accused, he is in custody and a lenient view may be taken with respect to the sentence, if this Court is not inclined to set aside the conviction recorded against him.
11. Advocate Sri.Nireesh Mathew, learned counsel appearing for the second accused emphatically submitted that the prosecution has Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-15:-
miserably failed to prove the involvement of the second accused and his role in the commission of the offence as alleged by the prosecution. In order to substantiate the above contention, the learned counsel strenuously submitted that the identity of the second accused is not proved. According to the learned counsel, the claim of PWs.1,2 and 3 with respect to the identity of the second accused cannot be believed since those witnesses had no occasion to meet the accused and their evidence with respect to the identification of the second accused is unbelievable and unacceptable. According to the learned counsel, the attempt of the prosecution to connect the accused with the incident is also failed since MO1 mobile phone allegedly used by the second accused is not proved and the evidence of PW6 would show that MO1 mobile phone was in the name of PW6 and he sold the same. PW6 is the brother of second accused and he turned hostile. Therefore, there is no legal evidence to connect the second accused with the incident on the basis of the MO1 mobile phone. It is also the submission of the learned counsel that another piece of paper produced by the prosecution to connect the second accused with the incident is that of Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-16:-
Exts.P11 and P11(a) sales tax documents and Exts.P12 and P12(a) bills which contained the name of second accused. The first contention is that being the photostat copies, the same cannot be accepted as legal evidence until the prosecution convinces the court that the original was not available for valid reasons. It is also the contention of the learned counsel that those documents were allegedly seized on 14.2.2008 when PW11 prepared the body mahazar of the lorry in question and the same was allegedly recovered from the cabin of the said lorry. According to the learned counsel, the above version of the prosecution cannot be accepted since though PW1 conducted inspection of the cabin of the vehicle 7.12.2008 itself, no such documents were recovered. Another point raised by the learned counsel for the second accused is that PW1 deposed that the originals of the sales tax declaration and the bills of 45 sacks of onion were entrusted with PW4 by the first accused, but that originals were not traced out and the corresponding bills were also not produced. Thus, according to the learned counsel, there is no satisfactory evidence to connect the second accused with the alleged incident and therefore, the Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-17:-
conviction and sentence imposed against the second accused is liable to be set aside In support of his contention, the learned counsel heavily relied upon the decision reported in Sreedevi Amma v. Jayalakshmi [1998(1) KLT 197]
12. Sri.C.C.Thomas, learned Senior counsel appearing for the third accused submitted that the evidence of PWs.1 and 2 with respect to the identity of the third accused is absolutely unreliable and unacceptable since they identified third accused in the court after four years from the date of occurrence. The learned counsel strenuously submitted that to connect the third accused with the incident, the prosecution placed reliance upon the concocted document viz.,Ext.P15 by which Ext.P21 document was seized. According to the learned counsel, Ext.P21 could not be seized by PW11, since PW1 has conducted the inspection in the cabin of the vehicle in question on the date of the incident that is on 7.2.2008 and no such document was available. According to the learned counsel, no explanation is forthcoming for the above defect. Learned counsel has also pointed out that PW5, who was allegedly present, when Ext.P15 was Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-18:-
prepared by PW11 with respect to the seizure of the documents covered by Ext.P15, in his deposition did not mention about Ext.P21, but referred to Exts.P11 and P12 series only. It is the further submission of the learned counsel that PW12 was not questioned about the original of Ext.P21 and PW12 was examined without citing him as charge witness. Thus, according to the learned counsel for the accused, absolutely there is no legal evidence to connect the third accused with the alleged incident. Both the counsel for accused Nos.2 and 3 are unanimous in their submission that even in Ext.P13 occurrence report, PW5 has recorded that the other accused persons in the lorry could not be identified as they ran away.
13. On the other hand, stoutly resisting the argument advanced by the counsel for the appellants, Sri. N.Suresh, learned Public Prosecutor for the State vehemently submitted that PWs.1,2 and 12 have categorically stated and deposed before the court regarding the involvement of the accused including accused Nos.2 and 3. According to the learned Public Prosecutor, PWs.1,2 and 12 ,being officials experienced in the detection of crime and investigation, their evidence with respect to the identity of Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-19:-
accused Nos.2 and 3 can be safely accepted and acted upon since their memory will be sharp. According to the learned Public Prosecutor, PWs.1,2 and 12 are the official who had occasion to interact with these accused and the defence has miserably failed to bring anything to discredit their version. It is also the submission of the learned Public Prosecutor that all evidence and materials furnished by the prosecution are true and correct and the evidence of PWs.3 and 4 is also correct even though they could not identify these accused properly since they are not expert. Learned Public Prosecutor, after inviting my attention to Exts.P11 and P11
(a) and the deposition of PW4, submitted that the name of the person in charge of the goods (the second respondent) and driving licence number of the second accused is recorded in Exts.P11 and P11(a) and the same tallies with Ext.P18 driving licence of the second accused. Therefore, these documents positively prove the presence of second accused and his role in the commission of offence. Banking upon the evidence of PW12 and Ext.P21, the learned Public Prosecutor submitted that the evidence of PWs.1 and 2 regarding the presence of the third accused in the commission Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-20:-
of the offence is corroborated by the evidence of PW12 and Ext.P21 the contemporary document. Thus, according to the learned Public Prosecutor, the accused Nos.2 and 3 are the main brain behind the commission of the offence by which large quantity of spirit transported from outer state to Kerala and though the first accused is the man, who drove the vehicle, he is only a scape goat. Therefore, the learned Public Prosecutor submitted that the finding and the conviction and sentence imposed against the appellants are correct and no interference is warranted.
14. I have carefully considered the arguments advanced by the learned counsel for the appellants and the learned Public Prosecutor. I have also perused the judgment of the trial court and scrutinised the deposition of the prosecution witnesses and the documents relied on by the prosecution.
15. In the light of the rival arguments advanced by the counsel for the appellants and the learned Public Prosecutor, and in the light of the evidence and materials on record, the question to be considered is whether the trial court is justified in its finding and convicting the appellants and Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-21:-
whether the prosecution has succeeded in establishing the identity of the accused and their role in the commission of the offence as alleged.
16. The crux of the prosecution allegation is that on 7.2.2008 at about 5.45 a.m., the accused were found importing 7084 litres of spirit kept in 222 plastic cans and those were concealed beneath the onion sacks loaded in a lorry bearing Regn.No.MH-06 Ac/7148 and thereby, committed the offence punishable under Section 55(a) of the Abkari Act.
Therefore, the question to be considered is whether the prosecution has succeeded in establishing that the accused are found involved in importing of the contraband article. It is relevant to note that the alleged time of the offence was on 5.45 a.m. on 7.2.2008 at the check post of Excise and Commercial Tax at Koottupuzha. Going by the evidence of star witnesses of the prosecution viz., PWs.1,2,3 and 4, it can be seen that the vehicle, driven by the first accused when reached at the above mentioned check post, was stopped and as directed by PWs.1,2 and 4, the driver viz., the first accused approached PWs.1 and 4 and furnished the available documents which are necessary for getting clearance from the above two Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-22:-
check posts. On detecting the crime, the first accused was arrested from the spot which fact is substantiated through the prosecution materials including Ext.P1 seizure mahazar, Ext.P2 arrest memo and from the deposition of PWs.1 to 4. The said fact is not seriously disputed by the first accused. On the other hand, the defence taken by the first accused is to the effect that the first accused is a person, who undertook the job to drive the vehicle from Maharashtra to Kerala under the impression that the vehicle contains only onion sacks and he was unaware of the concealment of 222 cans of spirit beneath the onion sacks. On a close circumspection of the facts and circumstances involved in the case, I am unable to accept the explanation of the first accused and the arguments advanced by the learned counsel for the first accused. As rightly pointed out by the learned Public Prosecutor, even from the records, only 45 sacks of onion were loaded in the vehicle and no prudent man will believe the case of the first accused that for loading only, these 45 sacks of onion incurring heavy expenses, the transportation facilities were arranged through the vehicle in question. It is also relevant to note that the stand of first accused cannot be Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-23:-
believed for a moment for the reason that he does not disclose the persons who entrusted the onion sacks and the contraband article. No attempt from the part of the first accused to escape from the spot cannot be accepted as a ground to support his innocence because the evidence shows that when the excise authorities pierced the iron rod into the sacks and when the spirit dropped out, the accused was in their custody. The background, under which the first accused reached at the check post with the lorry in which the spirit cans cleverly concealed, would show his intention and impression was that the same could have transported unnoticed by the checkpost officials and after detecting the crime, there is no meaning in the pleading that he produced the documents and not tried to escape because of his innocence. Thus, the explanation offered by the first accused in support of his plea of innocence cannot be accepted and the prosecution evidence and materials positively prove the presence and involvement of the first accused in the commission of the offence by which he transported 7084 litres of spirit from Maharashtra to Kerala. Though the learned counsel for the first accused has submitted about the non compliance of Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-24:-
Section 53A of the Abkari Act, the said point was not effectively raised during the trial and no materials are brought out. In the present case it can be seen that, Ext.P16 inventory is certified by the learned Magistrate of the committal court and the said inventory was prepared by PW5, and he had done the same as directed by the Assistant Commissioner of Excise, the authorised officer as evident from the deposition of PW5. In this juncture, it is relevant to note that PW1 has prepared Ext.P1 mahazar meticulously after physical verification of the entire 222 cans and the contents therein, and it is specifically noted down that each can contains 32 ltrs. of spirit and in one can, the balance, after dropping out of the spirit on piercing the same with iron rod, was only 12 ltrs., since 20 ltrs. of spirit was lost and thus altogether the contraband article was quantified as 7084 ltrs. of spirit. Therefore, even if there is variation in the procedure adopted, the same will not affect the prosecution as such. Thus, according to me, the prosecution has succeeded in proving the allegation against the first accused.
17. The question remains to be considered is whether the Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-25:-
prosecution has succeeded in establishing the involvement of accused Nos.2 and 3 and their identity. Even according to the prosecution case, the facts and circumstances upon which the allegations attributed against accused No.2 and 3 are on different footing and therefore, the prosecution allegations are to be examined on the basis of the available evidence and materials to find out how far the prosecution succeeded in establishing those allegations against accused Nos.2 and 3. Admittedly, the prosecution has no case that accused Nos.2 and 3 were arrested from the spot along with the first accused. The prosecution story is to the effect that even these accused were present along with the first accused when the said lorry was stopped for inspection, they ran away from the lorry when the Excise Authorities detected the concealment of spirit in the vehicle. Thus, according to the prosecution witnesses, who involved in the inspection of the vehicle and detection of the crime, these accused are the persons, who ran away from the vehicle. Thus, to connect accused Nos.2 and 3 with the above crime, the prosecution very much placed reliance upon the depositions of PWs.1,2,3 and 4 and also depending upon certain Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-26:-
documents and materials. Therefore, the further question to be considered is whether the prosecution evidence and materials are sufficient to connect accused Nos.2 and 3. Therefore, a close scrutiny with respect to the evidence of PWs.1 to 4 is required.
18. As per the prosecution allegation, the vehicle in question was arrived in the above check post in the early morning at about 5.45 a.m on 7.2.2008. In the chief examination of PW1, he has stated that while he was conducting the inspection of the vehicles in the check post as part of his duty, the vehicle in question arrived there at about 5.45 a.m. and the same was directed to be stopped. Accordingly, the driver of the vehicle was informed that the vehicle would be inspected and the driver was asked to get down and thereafter, questioned him about the load in the vehicle and he replied that it was onion sacks and transporting the same to Kozhikode. He had also deposed that he had examined the documents and found to be correct. It is the further case of PW1 that thereafter, the tarpaulin was removed and iron road was pierced through the sacks and thus, some liquid dropped down and felt the smell of spirit and at that Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-27:-
time, two persons who were in the vehicle ran away. He had stated as follows:-
2 .
driver .
witness points to A1.
A2 and A3.
........................
."
In the chief examination, PW1 has not pointed out accused Nos.2 and 3 as in the case of the first accused, though he had claimed that the second accused was shown to him by the Investigating Officer. PW1 has not claimed that the two persons, who were allegedly present in the vehicle, were got down from the vehicle along with the first accused and he had seen them. PW1 has also no case that he had noticed the presence of accused Nos.2 and 3 in the vehicle when the first accused was directed to get down. During the cross-examination, PW1 has admitted that the sales tax office is situated 25 metres away from the Barricade and the Excise Office is at about 35 metres. He had also stated that the electrical post is situating 10 metres away from the Barricade and the sodium-vapour lamp is situating 10 metres from the northern side of Barricade. He had also Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-28:-
stated as follows:-
" light . Ext.P1
Sodium Paper lamp .
."
Either during the chief examination or during the cross-examination of PW1, he had never stated that he had noticed any particular feature of accused Nos.2 and 3 so as to identify them. From the above evidence of PW1, it cannot be said that he had occasion to see accused Nos.2 and 3 and to notice any features of them to identify the persons, who were allegedly present in the vehicle when it was stopped for inspection. PW1 has stated that he had not recorded the presence of light in the cabin in Ext.P1 seizure mahazar. He had also stated as follows:-
"
sodium paper lamp-
. Ext.P1-
. ."
PW1 has also no case that he had chased the person who ran away. Therefore, the evidence of PW1 cannot be believed to hold that the persons, those who were found running away, are the persons present in the court at the time of trial.
Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-29:-
19. The evidence of PW2 is also not helpful for the prosecution to prove the identity of accused Nos.2 and 3. During the chief examination, PW2 has claimed that himself and Excise Guard, though tried to get the persons who ran away from the vehicle, the same was not materialised.
But the above claim of PW2 itself is doubtful. Since during the cross- examination for accused Nos.1 and 3, he had stated " . spirit- smell .
. spirit - . cabin
- 3 2 .
. .
. 10-
30 .
He had further stated as follows:-
"Sodium paper lamp -
.
. ."
During the cross examination of the second accused, he had deposed as follows:-
" 30
.
."
Thus, on a close analysis of the evidence of PW2, it can be seen that his evidence is also having the same defect and infirmities as that of PW1 and Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-30:-
he had no occasion to see the persons who ran away from the cabin of the vehicle and he had failed to note down any particular feature of those persons so as to remember again. As in the case of PW1, PW2 has also made improvements during his deposition so as to justify his claim. So PW2 cannot be believed to prove the identity of accused Nos.2 and 3 as the person who ran away from the vehicle.
20. In this juncture, it is also relevant to consider the evidence of PWs.3 and 4. PW3 is not certain about the identity of the first accused and he has stated that two persons ran away from the vehicle. In the chief examination, PW3 has stated as follows:-
" 2 . .
A1 . witness points to A1."
Though PW3 is a loyal witness to the prosecution, his evidence is not helpful for the prosecution to prove the identity of accused Nos.2 and 3 and identity of the first accused itself is doubtful. PW4 is a Government Official attached to Commercial Tax Check Post, Kuttupuzha at that time, and who involved in the inspection of the vehicle along with PW1 and PW2. During the chief examination itself, he had stated in an unequivocal Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-31:-
language as follows:-
"A1- . Lorry- 2 .
."
It is quite surprise to note that as pointed out by learned counsel for the appellants in Ext.P13 occurrence report, PW5 has recorded that the other accused persons in the lorry could not be identified as they ran away. If that be so, no value can be added for the identification of the accused during the trial of the case. If the prosecution is so particular, they could have recorded in Ext.P3 occurrence report that the persons ran away from the vehicle are identifiable, but PWs.1,2,4 and 5 have not got such a case. On a detailed scrutiny of the evidence of PW4, it can be seen that the claims of all the witnesses PWs.1 to 4 regarding the inspection of the vehicle, examination of the papers and the arrest of the first accused etc. are identical. If the claim of PWs.1 and 2 is correct that they have seen the other two persons in the vehicle, PW4 also can see and identify the other two persons. But, he had positively deposed that he cannot identify these persons. PW4 has also no claim that he had seen the above persons. Thus, on an evaluation of the evidence of PWs.1 to 4, even if for the arguments Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-32:-
sake, it is admitted that there were two other persons in the lorry, it cannot be said that the prosecution has succeeded in proving that the other two persons, who ran away from the lorry, are accused Nos.2 and 3.
21. As I indicated earlier, the other evidence pressed into service by the prosecution to connect accused Nos.2 and 3 with the crime are certain documents and the evidence of PWs.6,9,11 and 12. To connect the second accused with the incident, the prosecution's claim is that MO1 mobilephone was recovered from the cabin of the vehicle is the one used by the second accused. To prove these facts, the prosecution has examined PWs.6 and 9. PW6 is the brother of the second accused. He had deposed that MO1 mobile phone was in his name, but he had sold the same to some other persons. So, there is no positive evidence to show that MO1 was used by the second accused. Though PW6 turned hostile with particular intention to help his brother, the prosecution duty cannot be treated as complete at that point and it is for them to collect positive evidence that second accused was in possession of MO1. On the basis of the fact that once MO1 mobile phone was in the name of the brother of second Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-33:-
accused, viz., PW6, it cannot be held that one among the two persons who ran away from the cabin of the vehicle was the second accused.
22. Another set of documents produced by the prosecution to connect the second accused with the crime is Ext.P11 series and Ext.P12 series which are only photocopies. No explanation is forthcoming for not producing the original of those documents. The sanctity and genuineness of those documents are not free from doubt since though PW1 has claimed and deposed that he had inspected the cabin of the vehicle in question and recovered and seized certain documents mentioned in his deposition, he had no occasion to see these documents at the time of inspection on 7.2.2008, the date of the occurrence. If those documents were there in the cabin, certainly, the same would have been come to the notice of PW1 since we cannot presume that while discharging the official duty, PW1 has committed any dereliction of duty. In the present case, these documents were claimed to have recovered only on 14.2.2008 by PW11 when he prepared Ext.P15 body mahazar of the vehicle. In the absence of any convincing explanation for not producing the original of these documents Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-34:-
and the examination of the witnesses concerned with these documents and in the absence of any plausible and convincing explanation for the delay of recovery of these documents in spite of the fact that PW1 has conducted a thorough inspection of the vehicle and its cabin on 7.2.2008, it cannot be ruled out the allegation of the accused that these are concocted documents. The learned counsel for the second accused invited my attention to the deposition of PW1. PW1 deposed that the originals of the sales tax declaration and the bills of 45 sacks of onion were entrusted with PW4 by the first accused. But, it is interesting to note that originals were not traced out and the corresponding bills were also not produced. I am of the view that it was incumbent upon the prosecution to trace out the originals of those documents from PW4 and to produce the same before the court. Therefore, the evidence adduced by the prosecution namely through the deposition of PWs.6 and 11 and the documents Exts.P11 and P12 series and MO1 mobile phone are not sufficient to prove that it was the second accused, one among the two persons allegedly ran away from the vehicle in question on the date of the alleged incident.
Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-35:-
23. Similarly, the evidence against the third accused to connect with the incident is also shabby and insufficient. As in the case of the second accused to connect the third accused with the crime, the prosecution pressed into service the evidence of PWs.5,11 and 12 and also Exts.P15 and 21 documents. According to the prosecution, during the preparation of Ext.P15 body mahazar of the vehicle at the instance of PW11, along with certain other documents, PW11 has seized Ext.P21 document.
Ext.P21 is a receipt allegedly issued in the name of one Srineesh for the realisation of fine from the said person for overspeed. As per Ext.P21, the C.I. of Police, Birur Circle, Chikmagalur District, who is examined as PW12 realised the fine of Rs.300/- from the person mentioned therein. In Ext.P21, the driver's name is shown as Srineesh, but the name of the third accused as per the prosecution record is Shineesh. However, as in the case of Exts.P11 and P12 series, those documents were also not recovered by PW1 though he had conducted inspection of the cabin of the vehicle on 7.2.2008. Had those documents been in the cabin on 7.2.2008, the same could have been seized by PW1. No explanation is forthcoming. In this Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-36:-
juncture, it is relevant to note that according to the prosecution, PW5 was present along with PW11 when he prepared EXt.P15. But, PW5 in his deposition mentioned only about Exts.P11 and P12 series and not mentioned about Ext.P21. So the alleged recovery of Ext.P21 as per Ext.P15 is also under shadow of doubt. It is true, PW12 was examined by the prosecution to prove that he had issued Ext.P21. But, PW12 is not a charge witness and he was produced and examined as additional witness. The back records of Ext.P21 are not produced. Even if the evidence of PW12 and Ext.P21 is admitted as true and issued by PW12 against the third accused, that itself is not sufficient to prove that third accused was one among the two persons who ran away from the spot from the vehicle on the date of the incident. Thus, on an analysis of the evidence adduced by the prosecution to connect the second and third accused, I am of the view that those evidence are not sufficient to inspire the confidence of the court and to hold that the second and third accused are the two persons, who ran away from the spot as alleged by the prosecution. Thus, according to me, the evidence and the materials produced by the Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-37:-
prosecution to prove the involvement of accused Nos.2 and 3 in the commission of the offence are insufficient and the prosecution has miserably failed to prove the involvement of accused Nos.2 and 3 in the above crime as the persons who ran away from the spot, beyond reasonable doubt.
24. In the light of the above facts and circumstances and the evidence and materials referred to above and in view of the foregone discussions, I am of the view that the prosecution has succeeded in establishing the guilt of the first accused, but the prosecution has miserably failed to prove the allegation against accused Nos.2 and 3 beyond reasonable doubt. Accordingly, while confirming the finding and conviction recorded by the learned Judge of the trial court against the first accused, the finding and conviction recorded by the learned Judge against accused Nos.2 and 3 are set aside, by extending the benefit of doubt in favour of them.
25. Learned counsel for the appellant in the appeal preferred by the first accused submitted that right from the date of the incident, Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-38:-
the appellant/the first accused is in custody and thus, the sentence of imprisonment may be confined to the period already undergone by him. It is the further submission of the learned counsel that the appellant/first accused is hailing from Maharashtra State and being young, a lenient view may be taken in the matter of sentence. According to me, in the light of the above submission of learned counsel for the appellant and particularly, in the light of the observation made by the learned Judge of the trial court and in view of the submission of the learned Public Prosecutor that the first accused is a scapegoat, the sentence imposed against the first accused requires modification. According to me, the sentence awarded by the trial court can be modified by reducing the same into 4 years rigorous imprisonment and the fine amount can be reduced to `1 lakh and the default sentence can also be reduced into 3 months simple imprisonment. Set off is allowed under section 428 of Cr.P.C.
26. In the result, Crl.A.No.1215 of 2011 preferred by the 1st Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-39:-
accused is dismissed, confirming his conviction under section 55(a) of the Abkari Act as recorded by the trial court by judgment dated 7.10.2010 in S.C.No.463 of 2009 but subject to the modification with respect to the sentence to the extent indicated above.
27. In the light of the foregone discussion and the findings, the appeals preferred by the 3rd and 2nd accused in the above sessions case, ie., Crl.A.Nos.2014 of 2010 and 2016 of 2010 are allowed and they are acquitted of all the charges levelled against them and the bail bond, if any, executed by them are cancelled and they are set at liberty. It is submitted by the counsel for the appellants in Crl.A.Nos.2014/2010 and 2016/2010 that in terms of the order passed by this Court while suspending the execution of the sentence, each of the appellants has deposited `1 lakh each in the trial court and the said amount may be ordered to be released in favour of them. Therefore, if each of the appellants has deposited the amount as ordered by this Court by order dated 14.10.2010 in Crl.M.A.No.9535 of 2010 in Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-40:-
Crl.A.No.2016 of 2010 and Crl.M.A.No.9519 of 2010 in Crl.A.No.2014 of 2010 and the same is retained in the said court, the same shall be released to them forthwith, on approaching the trial court by filing proper application in this regard.
28. Though Crl.A.No.1215 of 2011 preferred by the 1st accused in the above sessions case stands dismissed, in the light of the above modification with respect to the sentence, particularly, set off under section 428 of Cr.P.C. is allowed, with respect to the period he had undergone as under trial prisoner, he is entitled to get released from the jail forthwith, if he is not required in any other case. Therefore, the Registry is directed to forward the gist of this judgment to the Superintendent, Central Prison, Kannur, forthwith for appropriate action.
V.K.MOHANAN, Judge MBS/ Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-41:-
25. Learned counsel for the appellant in the appeal preferred by the first accused submitted that right from the date of the incident, the appellant/the first accused is in custody and thus, the sentence of imprisonment may be confined to the period already undergone by him. It is the further submission of the learned counsel that the appellant/first accused is hailing from Maharashtra State and being young, a lenient view may be taken in the matter of sentence. According to me, in the light of the above submission of learned counsel for the appellant and particularly, in the light of the observation made by the learned Judge of the trial court Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-42:-
and in view of the submission of the learned Public Prosecutor that the first accused is a scapegoat, the sentence imposed against the first accused requires modification. According to me, the sentence awarded by the trial court can be modified by reducing the same into 4 years rigorous imprisonment and the fine amount can be reduced to `1 lakh and the default sentence can also be reduced into 3 months simple imprisonment. Set off is allowed under section 428 of Cr.P.C.
In the result, Crl.A.No.1215 of 2011 preferred by the 1st accused is dismissed, confirming his conviction under section 55(a) of the Abkari Act as recorded by the trial court by judgment dated 7.10.2010 in S.C.No.463 of 2009 but subject to the modification with respect to the sentence to the extent indicated above.
In the light of the foregone discussion and the findings, the appeals preferred by the 3rd and 2nd accused in the above sessions case, ie., Crl.A.Nos.2014 of 2010 and 2016 of 2010 are allowed and they are acquitted of all the charges levelled against them and the bail bond, if any, executed by them are cancelled and they are set at liberty. Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-43:-
Though Crl.A.No.1215 of 2011 preferred by the 1st accused in the above sessions case stands dismissed, in the light of the above modification with respect to the sentence, particularly, set off under section 428 of Cr.P.C. is allowed, with respect to the period he had undergone as under trial prisoner, he is entitled to get released from the jail forthwith, if he is not required in any other case. Therefore, the Registry is directed to forward the gist of this judgment to the Superintendent, Central Prison, Kannur, forthwith for appropriate action.
V.K.MOHANAN, J.
CRL.A.No. 434 OF 2003 Crl.A.Nos.2014 & 2016 of 2010 & Crl.A.No.1215 of 2011 :-44:-
JUDGMENT Dated:11.11.2011