Kerala High Court
Danial Rodrigues vs State Of Kerala on 11 July, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH
FRIDAY, THE 4TH DAY OF JULY 2014/13TH ASHADHA, 1936
CRL.A.No. 1329 of 2005 (F)
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AGAINST THE JUDGMENT IN SC 216/2001 of ADDL.DISTRICT COURT (ADHOC-I),
KASARAGOD DATED 11-07-2005
AGAINST THE ORDER IN CP 248/2000 of J.M.F.C.,KASARAGOD
DATED 25-06-2001
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APPELLANT/ACCUSED :
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DANIAL RODRIGUES, AGED 61 YEARS,
S/O.SEBASTIAN, RODRIGUES, ARANATHODU
MADHUR VILLAGE.
BY ADVS. SRI.T.K.VIPINDAS
SMT.P.K.PRIYA
RESPONDENT/COMPLAINANT:
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STATE OF KERALA, REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
REPRESENTING THE SHO,
EXCISE INSPECTOR, KASARAGOD.
BY ADV. PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
04-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BABU MATHEW P. JOSEPH, J.
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Crl. Appeal No.1329 of 2005
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Dated this the 4th day of July, 2014
JUDGMENT
The appellant was convicted by the Additional Sessions Court (Adhoc)I, Kasaragod, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for a period of five months and to pay a fine of 1 lakh and, in default of payment of fine, to undergo rigorous imprisonment for a period of one month. The appellant challenges the conviction and sentence so passed by the court below in this appeal.
2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent.
3. The prosecution case is briefly stated as follows:
PW1, the Excise Inspector, Excise Range Office, Kasaragod, and his party were on patrol duty at Aranthodu in Madhoor Village at about 9.00 a.m. on 06-01-2000. While so, the Crl. Appeal No.1329 of 2005 -2- appellant was seen coming from the opposite side carrying a black plastic can of 10 litre in his right hand. Seeing the excise party, the appellant attempted to flee away. But, he was stopped there by the excise party. On examining the plastic can, it was found that the can contained full of arrack. Therefore, he was arrested then and there preparing an arrest memo. His wife was informed of this fact. The can containing the arrack was seized under Ext.P1 Seizure Mahazar at 9.00 a.m. on 06-01-2000. PW1 had taken 300 ml. of arrack in a 375 ml. bottle as sample from the bulk of arrack contained in the can. The sample and the can containing arrack were sealed. Thereafter, PW1 went to the Excise Range Office, Kasaragod, with the appellant and the contraband and registered Crime No.1 of 2000 of that Excise Range Office. Ext.P2 is the Crime and Occurrence Report prepared by PW1. He had produced the appellant and the records before the court on 06-01-2000 itself. He had also produced the List of Property and the Forwarding Note along with the contraband and its sample on 07-01-2000. Crl. Appeal No.1329 of 2005 -3- PW5, the Excise Inspector, Excise Range Office, Kasaragod, had conducted the investigation of the case. He had questioned the witnesses and recorded their statements. He had completed the investigation and submitted the Final Report before the Judicial First Class Magistrate's Court, Kasaragod, alleging the offence under Section 55(a) of the Abkari Act against the appellant.
4. The learned Magistrate committed the case to the Court of Session, Kasaragod, and, from there, it was made over to the Assistant Sessions Court, Kasaragod. Later, it was made over to the Additional Sessions Court (Adhoc)I, Kasaragod. The court below framed a charge against the appellant alleging the offence under Section 55(a) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 5 and marked Exts.P1 to P5 and M.O.1 on their side. The appellant was examined under Section 313 of Cr.P.C. He had denied all the incriminating circumstances shown against him. The defence had not adduced any evidence. The court below, after Crl. Appeal No.1329 of 2005 -4- considering the matter, found the accused guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him.
5. The appellant has raised various contentions challenging the conviction and sentence passed against him. The case of the prosecution is that the appellant was seen coming with a plastic can containing 10 litres of arrack on 06-01-2000. He was arrested then and there and the arrack was seized. A sample of 300 ml. of arrack was drawn by PW1 in a 375 ml. bottle from the bulk in the can for the purpose of chemical analysis.
6. PW1 is the detecting officer. PW2, the Excise Preventive Officer, also accompanied PW1 at the time of detection of the offence. Both these witnesses had deposed before the court in terms of the case of the prosecution. This Court does not find any reason to disbelieve the evidence so given by PWs.1 and 2. The documents viz., Exts.P1 Seizure Mahazar and Ext.P2 Crime and Occurrence Report had Crl. Appeal No.1329 of 2005 -5- reached the Magistrate on the date of detection of the offence itself. The contraband with the sample and the Forwarding Note were also produced before the court on the next day, namely, 07-01-2000. Ext.P5 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory. This document shows that ethyl alcohol was detected in the sample and the sample of liquid contained 35.73% by volume of ethyl alcohol. It can also be seen from this document that the seals on the bottle were intact and found tallied with the sample seal provided. The fact that the independent occurrence witnesses, namely, PWs.3 and 4 did not support the prosecution case does not affect the veracity of the evidence adduced by PWs.1 and 2. Since the evidence of PWs.1 and 2 is reliable, the fact that PWs.3 and 4 did not support the prosecution case will not be of any consequence. The prosecution succeeded in establishing beyond reasonable doubt that the appellant had committed the offence.
7. The charge framed by the court below against the Crl. Appeal No.1329 of 2005 -6- appellant is under Section 55(a) of the Abkari Act. Since the contraband involved in this case is arrack, the appropriate offence is under Section 8(2) of the Abkari Act. The punishments prescribed for the offences under Sections 55
(a) and 8(2) are one and the same. Therefore, the appellant is found guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder instead of the offence under Section 55(a).
8. Learned counsel for the appellant submits that the appellant is now aged 70 and ailing. The offence in this case was committed on 06-01-2000. More than 14 years have elapsed since then. The appellant had already undergone incarceration from 06-01-2000 to 09-02-2000 as an under trial prisoner. Therefore, on considering these facts, the learned counsel prays for modifying the sentence to that of fine only. The fact that the appellant had undergone imprisonment as an under trial prisoner from 06-01-2000 to 09-02-2000 is noted in the impugned judgment. In view of the facts highlighted by the learned counsel for the Crl. Appeal No.1329 of 2005 -7- appellant, the sentence is modified as imprisonment till the rising of court and to pay a fine of 1 lakh and, in default of payment of fine, to undergo rigorous imprisonment for one month.
9. The appellant shall surrender before the court below on or before 05-08-2014. The bail bond executed by him shall stand cancelled.
This appeal is disposed of as above.
Sd/-
BABU MATHEW P. JOSEPH JUDGE kns/-
//TRUE COPY// P.A. TO JUDGE