Kerala High Court
Shanmughayya vs The State Of Kerala Rep. By on 17 November, 2012
Author: S.Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.SIRI JAGAN
SATURDAY, THE 17TH DAY OF NOVEMBER 2012/26TH KARTHIKA 1934
Crl.Rev.Pet.No. 2677 of 2004 (D)
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CRA.265/2003 of D.C.& SESSIONS COURT,THODUPUZHA
CC.294/1998 of J.M.F.C.,PEERUMEDU
REVISION PETITIONER/ACCUSED:
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SHANMUGHAYYA, S/O.SENTHOORAN,
RESIDING AT M.M.J.ESTATE LANE, VAGAMON KARA
VAGAMON VILLAGE, PEERUMEDU TALUK.
BY ADVS.SRI.T.A.UNNIKRISHNAN
2MT.RESHMI POULOSE
RESPONDENT/COMPLAINANT:
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THE STATE OF KERALA REP. BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY ADV. SRI. BIJU MEENATTOOR - PUBLIC PROSECUTOR.
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 17-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
acd
S. SIRI JAGAN, J.
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Crl.R.P. No.2677 of 2004
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Dated this the 17th day of November, 2012
ORDER
The petitioner is the accused in C.C.No.294/1998 before the Judicial First Class Magistrate's Court, Peerumedu. He was prosecuted for offence under Section 55(a) of the Abkari Act. The allegation against the petitioner was that at 12.15 during the night in between 17.12.1996 and 18.12.1996, the petitioner was found in possession of one litre of arrack kept for sale among the public, who came to attend the festival at Kannamkulam temple in Vagamon Village. He, thereby, committed the offence alleged against him.
2. The prosecution examined PWs 1 to 5 and marked Exts.P1 to P3 as well as MOs 1 and 2. The defence did not adduce any evidence. After considering the evidence of the prosecution, the Magistrate found the petitioner guilty and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.25,000/- (Rupees twenty five thousand only) Crl. R.P.No.2677/04 2 with a default sentence of rigorous imprisonment for a further period of six months. Set off was allowed in respect of the period, if any, during which the accused was in detention, pending investigation, enquiry and trial. The petitioner challenged the judgment of the Magistrate by filing Criminal Appeal No.265/2003 before the Additional District and Sessions Court, Thodupuzha. The Sessions judge dismissed the appeal confirming the conviction and the sentence. The petitioner is challenging the the judgments of the courts below.
3. The petitioner contends that there is no reliable evidence to convict the petitioner. He submits that no offence under Section 55(a) of the Abkari Act was made out in this case. There is no allegation that the petitioner imported, exported, transported or transited liquor or that he possessed liquor, in the course of import, export, transport or transit. As such, Section 55 (a) of the Abkari Act is clearly not attracted but, he has been wrongly convicted under that Section. It is further submitted that in this case, apart from the interested testimony of the police officers, there is no legal evidence to convict the petitioner. The mahazar witnesses did not support Crl. R.P.No.2677/04 3 the prosecution case. Therefore, there is no independent evidence for the occurrence. Admittedly, there was a police aid post near the place. After taking the petitioner into custody, the petitioner was not taken to the police aid post, which would put serious doubts into the prosecution case. It is also submitted that there is delay in production of the contraband before the court. According to the petitioner, the contraband was seized on 17.12.1996 but, produced only on 19.12.1996, which delay has not been properly explained. There was also considerable delay in arresting the accused, after the detection of the evidence, which is fatal to the prosecution case is also a contention raised.
4. On the other hand, the learned Public Prosecutor would contend that there is no rule in criminal law that there cannot be any conviction on the basis of the evidence of official witnesses alone. It is pointed out that although the mahazar witnesses turned hostile, they admitted their signature in the mahazar. Despite the fact that the petitioner cross examined PWs 1 and 5 extensively, nothing favourable to the petitioner has been brought out in cross examination. Crl. R.P.No.2677/04 4 According to the learned Public Prosecutor, the evidence of PWs 1 and 5, who apprehended the petitioner and conducted the investigation, is sufficient to prove the guilt of the petitioner beyond a reasonable doubt. The learned Public Prosecutor submits that the petitioner was apprehended at 12.15 in the night between 17.12.1996 and 18.12.1996, and actually he was apprehended on 18.12.1996. Therefore, there is no culpable delay in production of the contraband before the court on 19.12.1996. It is also submitted that the petitioner has not been able to prove prejudice caused to him on account of the alleged delay. It is further submitted that the fact that he was arrested only on 14.10.1999 is no ground to acquit the petitioner, insofar as in respect there also, no prejudice has been caused to the defence of the petitioner.
5. I have considered the rival contentions in detail.
6. I have gone through the evidence of the prosecution witnesses. PWs 1 and 5 have given reliable evidence regarding the occurrence. A can of arrack containing one litre of arrack along with a glass have been seized from the petitioner. The place from where the petitioner was apprehended was near to Crl. R.P.No.2677/04 5 a temple where a festival was going on. The very presence of glass would show that the petitioner was engaged in the sale of arrack. The petitioner has not been able to prove that he was legally possessing the arrack and had appropriate permit and licence for doing what he was found doing. Under Section 64 of the Abkari Act, once the petitioner is apprehended with the arrack and glass, it is for the petitioner to prove that the petitioner has not committed the offence, since the offence is one under Section 55.
7. Of course the petitioner is well founded in the contention that Section 55 (a) is not attracted insofar there is no allegation that the petitioner was in possession of the arrack in the course of import, export, transport or transit. In fact, the allegation against the petitioner is that he has stored the arrack for sale. As such, although the petitioner may not be strictly guilty under Section 55 (a), clearly, he is guilty under Section 55 (i). The entire prosecution case is only under Section 55 (i) also. The prosecution has clearly proved the case under Section 55 (i). Therefore. exercising my powers under Section 221(2) of the Cr.P.C., I can hold that the Crl. R.P.No.2677/04 6 petitioner is guilty under Section 55 (i) of the Abkari Act.
8. I do not find any merit in the contention of delay raised by the petitioner as well. The petitioner was apprehended at 12.15 am on 18.12.1996. The contraband was produced before the court on 19.12.1996. The petitioner has not been able to satisfy me that the petitioner has been prejudiced because of the delay. Likewise, the petitioner has not been able to satisfy me that he was in any way prejudiced in his defence because of the delay in arresting him when the other facts have been clearly proved. In the above circumstances, I do not find any merit in the challenge against the conviction entered by the courts below.
9. The learned counsel for the petitioner makes a fervent plea for reducing the sentence. Fine of Rs.25,000/- (Rupees twenty five thousand only) was the minimum prescribed under the Act at the relevant time. But, insofar as the quantity seized is only one litre and the petitioner was 55 years old at the time of commission of the offence and 16 years have already gone by, I am inclined to take a lenient view in the matter of imposition of punishment of Crl. R.P.No.2677/04 7 imprisonment. Accordingly the punishment of imprisonment is reduced to two months. The sentence of fine and and default imprisonment will stand. Needless to say, if the petitioner has already undergone any detention, the petitioner will be entitled to set off.
The Cr.R.P. is disposed of as above.
S. SIRI JAGAN, JUDGE acd Crl. R.P.No.2677/04 8 Crl. R.P.No.2677/04 9