Kerala High Court
Thattaliyath Dineshan vs State Represented By Public Prosecutor on 26 July, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
FRIDAY,THE 22ND DAY OF NOVEMBER 2013/1ST AGRAHAYANA, 1935
CRL.A.No. 1380 of 2005 ( )
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AGAINST THE ORDER/JUDGMENT IN SC 394/2002 of ADDL.SESSIONS COURT
(ADHOC)-III, THALASSERY DATED 26-07-2005
APPELLANT(S)/ACCUSED:
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THATTALIYATH DINESHAN,
S/O.KUNHIRAMAN, AGED 38 YEARS, DHARMADAM AMSOM
PALAYAD DESOM.
BY ADVS.SRI.R.PARTHASARATHY
SMT.SEEMA
RESPONDENT(S)/COMPLAINANT:
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STATE REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
BY ADV. PUBLIC PROSECUTOR SRI.N.SURESH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-11-2013, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V.K.MOHANAN, J.
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Crl.A.No.1380 of 2005
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Dated this the 22nd day of November, 2013
J U D G M E N T
The above appeal is directed against the judgment dated 26.07.2005 in S.C.No.394 of 2002 of the court of Additional Sessions (Ad hoc III), Thalassery, by the sole accused in the above Sessions Case as he is aggrieved by the conviction and sentence imposed on him under Section 63 of the Abkari Act.
2. The prosecution case is that on 09.03.2000 at 11.45 am., the accused was found in possession of 48 bottles of United Delux Brandy of 180ml capacity each and 13 bottles of United Delux Brandy of 375 ml capacity each at Chirakkuni in Dharmadam Amsam, Palayad Desom, Thalassery and thereby the accused committed the offence punishable under Section 55(a) of the Abkari Act read with Rule 9 and 26 of the Foreign Liquor Rules.
3. On the above allegation, Crime No.5 of 2000 was registered in the Thalassery Excise Range Office for the said offence and on completing the investigation, a formal charge was filed against him before the committal court and upon such report C.P.No.10 of 2002 was instituted in the Judicial First Class Magistrate Court, Thalassery and subsequently by Crl.A.No.1380 of 2005 2 order dated 09.05.2002, the learned Magistrate committed the case to the Sessions Court wherein S.C.No.394 of 2002 was instituted. When the accused appeared a formal charge was framed against him for the offence punishable under Section 55(a) of the Kerala Abkari Act read with Rule 9 and 26 of the Foreign Liquor Rules, which when read over and explained to him he denied the charge and pleaded not guilty. Subsequently the trial was proceeded further, during which Pws.1 to 5 were examined and Exts.P1 to P7 were marked and also produced and identified Mos.1 and 2 as material objects. The trial court, on the basis of the available evidence and materials, was not prepared to accept the prosecution case since no positive evidence was produced to prove that the accused was importing foreign liquor, violating Rule 9 of the Foreign Liquor Rules, or that the accused was possessing foreign liquor bottles, which were not having the security label of Beverages Corporation violating Rule 26 of the Foreign Liquor Rules and thus while rejecting the prosecution allegation, the learned Judge has found that the available evidence shows that the accused was found in possession of liquor in excess of the permitted limit of 1.5 litres and the accused could be found Crl.A.No.1380 of 2005 3 guilty only under Section 63 and not under Section 55(a) of the Abkari Act. Thus he is found guilty of the offence punishable under Section 63 of the Abkari Act and accordingly he is convicted thereunder. On such conviction, the appellant is sentenced to undergo rigorous imprisonment for three months and also sentenced to pay a fine of Rs.5,000/- and in default he is directed to undergo simple imprisonment for two months. It is the above finding and order of conviction and sentence for the offence under Section 63 that are challenged in this appeal.
4. Heard Smt.Seema Parthasarathy, learned counsel for the appellant and Sri.N.Suresh, learned Public Prosecutor for the State.
5. Inorder to substantiate the above allegation, as I indicated earlier, though prosecution has examined 5 witnesses and out of them Pws.2 and 3 were independent witnesses they were turned hostile to the prosecution. So to prove the detection of the crime and the seizure of contraband article, the prosecution depend upon the evidence of PW1 and other documentary evidence. PW1 is the then preventive officer of the Excise Range, Thalassery who had accompanied CW1 the Crl.A.No.1380 of 2005 4 detecting officer. As the detecting officer was no more at the time of the trial, the prosecution was constrained to depend upon the evidence of PW1 who is familiar with the handwriting and signature of CW1 the detecting officer and who was also one of the members of the raiding party lead by CW1. Thus when PW1 examined, he had deposed strictly in terms of the prosecution allegation and according to him, while PW1 along with CW1 were on patrol duty, they found the accused by the side of a well in the property acquired by Mahe bye-pass road in Chirakkuni town and the accused was intercepted and the contents of the bag which was held by him on inspection realised as Indian made foreign liquor brought from Mahe and according to PW1, the accused had confessed that he had kept another bag in the adjacent path way. According to PW1, the bag which was found with the accused contained 24 bottles of 180ml capacity with the label United Delux Brandy and the other bag produced by the accused also contain 13 bottles of 375 ml capacity with the label United Delux Brandy and 24 bottles of 180 ml capacity with label United Delux Brandy. PW1 has further stated about the procedure adopted by CW1 towards the seizure of the contraband article and arrest of the Crl.A.No.1380 of 2005 5 accused. Thus when PW1 was examined, Ext.P1 seizure mahazar, Ext.P2 arrest memo and Ext.P3 occurrence report are marked through PW1. Ext.P4 site plan got prepared through PW4 the then Village Assistant of Darmadam village. The further investigation was undertaken by PW5 the then Excise Inspector of Thalassery Excise Range who completed the investigation and laid the charge. When PW5 was examined, Ext.P5 property list and Ext.P6 forwarding note prepared and filed by CW1 were marked through him. Ext.P7 chemical analysis report also marked through PW5. These are the evidence relied on by the prosecution and produced before the court in support of their allegation against the appellant.
6. The learned counsel for the appellant fairly conceded that the main grievance of the appellant is against the sentence imposed by the court below for the offence under Section 63 of the Kerala Abkari Act. According to the learned counsel, even though the learned Judge found that the accused/appellant has not committed the offence punishable under Section 55(a) of Abkari Act. While convicting the appellant under Section 63, the learned Judge opted to impose both substantial sentence as well as pecuniary sentence which Crl.A.No.1380 of 2005 6 according to the learned counsel is highly arbitrary and illegal in the light of the facts and circumstances involved in the case. The learned Public Prosecutor fairly submitted that in view of Section 63, an option is given to the convicting court either to impose fine only or substantial sentence or to impose both.
7. I have carefully considered the submission made by the learned counsel for the appellant and learned Public Prosecutor.
8. In the light of the contentions advanced by the counsel for the appellant and the learned Public Prosecutor and especially when no contention is advanced on the merit of the case particularly with respect to the findings of the court below, according to me, this Court need not go into those aspects. Therefore, the question to be considered is whether the sentence imposed by the court below upon the appellant requires any interference or modification.
9. Having regard to the facts and circumstances involved in this case, it appears that on the date of alleged incident the appellant was only at the age of 35 years and he was a Coolie. In view of the findings of the court below, it can be seen that he had not transported any liquor from outside the State to the Crl.A.No.1380 of 2005 7 State of Kerala and the finding further shows that he was found in excess quantity of Indian Made foreign liquor than the permitted one. The alleged incident was taken place on 09.03.2000 and, thereafter, more than 13 years are over. Under the above circumstances, according to me, justice demands that instead of imposing both the sentence of imprisonment, fine and sending the appellant to Jail, the sentence can be confined to fine only. In view of Section 63 of the Kerala Abkari Act, the maximum fine can be imposed is only Rs.5,000/- and the trial court has directed the appellant to pay the maximum fine amount of Rs.5,000/- and also imposed a default sentence for the period of two months. According to me, while setting aside substantial sentence and while retaining the sentence of fine and the fine amount, the default sentence can be enhanced. Accordingly, while confirming the conviction of the appellant for the offence under Section 63 of the Kerala Abkari Act, the sentence of imprisonment ordered by the trial court is set aside and the sentence of fine is confirmed and while confirming the fine amount, the default sentence is enhanced as simple imprisonment for a period of six months.
Crl.A.No.1380 of 2005 8
In the result, this appeal is disposed of confirming the conviction of the appellant for the offence under Section 63 of the Abkari Act but subject to modification with respect to the sentence to the extent indicated above. Accordingly, the appellant is directed to appear before the trial court on 21.12.2013, to pay the fine amount being the sentence confirmed by this Court. In case the appellant fails to appear before the trial court on 21.12.2013 as directed above, and to pay the fine amount, the trial court is free to take coercive steps against him to secure his presence and to execute the modified sentence.
The appeal is disposed of accordingly.
V.K.MOHANAN JUDGE mns