Kerala High Court
Suresh vs The Circle Inspector Of Police on 6 March, 2014
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
THURSDAY,THE 6TH DAY OF MARCH 2014/15TH PHALGUNA, 1935
CRL.A.No. 971 of 2005 ( )
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SC 729/2001 of ADDITIONAL SESSIONS COURT (ADHOC-II), THIRUVANANTHAPURAM
APPELLANT(S)/2ND ACCUSED::
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SURESH, S/O. APPU,
DEVAKI NIVAS, PANDAKASALA, SARKARA
CHIRAYINKEEZH.
BY ADV. SRI.T.G.RAJENDRAN
RESPONDENT(S)/COMPLAINANT & STATE::
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1. THE CIRCLE INSPECTOR OF POLICE,
VARKALA POLICE STATION.
2. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SHRI K.K.RAJEEV
THIS CRIMINALAPPEAL HAVING BEEN FINALLYHEARD ON 19-02-2014 , THE
COURT ON 06-03-2014 DELIVERED THE FOLLOWING:
A.HARIPRASAD, J.
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Crl.Appeal No.971 of 2005
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Dated this the 6th day of March, 2014.
JUDGMENT
Appeal filed under Section 374(2) of the Code of Criminal Procedure (for short, "Cr.P.C.").
2. Appellant is the 2nd accused in S.C.No.729 of 2001 on the file of Additional Sessions Court (Adhoc-II), Thiruvananthapuram. He was tried, convicted and sentenced for offences under Sections 8(1) and 8(2) of the Abkari Act (for short, "the Act"). Prosecution contended that PW4, the Circle Inspector of Police, received a secret information on 17.05.1999 at about 9 p.m., that from the toddy shop, of which the appellant and the 1st accused were the licensees, illicit arrack was being sold. PW4 along with his Police party proceeded to the place. When they entered the toddy shop, the salesman ran away. On examination, it was found that large quantity of country liquor (arrack) was stored in plastic packets in the toddy shop and some of them have been emptied indicating sale of the same. The appellant was not present at the time of detection of the offence. However, later he was arrested. Prosecution contended that the appellant/2nd accused and other accused persons in the case are guilty of the said offences.
Crl.Appeal No.971/2005 2
3. In order to substantiate the prosecution case, Exts.P1 to P12 were marked. Four witnesses were examined. There was no defence evidence. Material objects are MOs 1 to 8.
4. Heard the learned counsel for the appellant and the learned Public Prosecutor.
5. Learned counsel for the appellant contended that the trial court misread the evidence to enter a finding of guilt of the appellant. It is evident from the impugned judgment itself that the 1st accused did not face a trial as he was absconding. The salesman of the toddy shop was not named in the final report submitted by the Police since his identity could not be established. In short, the appellant alone was tried and convicted for the above said offences.
6. PW4 is the detecting officer. He testified in the following lines:
At the material time, he was working as Circle Inspector of Police, Varkala. On the date of detection, he was engaged in patrol duty along with his party. While so, he received an information that illicit arrack was being sold in toddy shop No.33. He prepared a search memorandum and despatched it to the court to avoid delay in conducting the search. That is marked as Ext.P2. Thereafter, they went into the shop. Immediately the salesman ran away from the toddy shop. Licensees of the toddy shop were not present at that time. PW4 and party conducted search in the toddy shop. They found out plastic covers each containing Crl.Appeal No.971/2005 3 175 ml. of illicit arrack kept in plastic kits. There were 308 covers. Further, they could identify a glass tumbler with markings 5, 10, 15 and 20. They found out a pair of scissors and a plastic bucket, apparently used for the sale of illicit liquor. Besides they could find out 16 empty covers from which the illicit liquor was emptied and sold out. Sale proceeds of illicit liquor was also found out from the shop. After a thorough search and detection, Ext.P1 search list was prepared. Three covers containing illicit arrack were separately sealed and took for the purpose of sampling. Remaining 305 covers were packed in a sack. That is marked as MO1 series. Covers from which the illicit arrack was emptied are marked as MO2 series. The plastic kits in which the plastic covers containing arrack were kept are marked as MO3 series. Likewise, plastic bucket, a pair of scissors, currency notes recovered, etc. were also marked through PW4 at the trial.
After search and detection, PW4 returned to his office and registered Ext.P3 first information report. Property list is Ext.P4. Forwarding note (Ext.P5) was also submitted by PW4. PW4 took steps to unravel the identity of salesman of the toddy shop. Ext.P5 is the letter issued by the Excise Circle Inspector, Attingal. Ext.P6 revealed that the appellant and one Muraleedharan were the licensees of the toddy shop, T.S.No.33 at the material time. Thereafter, Ext.P7 report was submitted implicating the appellant and other licensee as accused in the offences. In the course of investigation, it was found out that N.Girish was the owner of the building. Crl.Appeal No.971/2005 4 PW4 testified that the owner of building was permanently residing at Madrass for more than 10 years before the incident. It is also understood that the shop was given on lease. PW4 testified that he could not get the correct identity of the salesman of the toddy shop. After conducting investigation, he himself filed the final report.
7. PW4 was subjected to tough cross-examination. Learned defence counsel attempted to take advantage of the pitfalls in the prosecution case by a searching cross-examining on PW4. PW4 answered that the licensees of the toddy shop have been properly identified and the description of the toddy shop has been mentioned in the case diary. Description of the toddy shop was T.S.No.33 Chennancode toddy shop. According to the appellant, the name of the shop was something different. However, this suggestion was stoutly denied by PW4. An attempt was made at the time of cross-examination of PW4 to show that the raid was conducted in a shop illicitly run by someone and the shop conducted by the appellant as licensee was something different. But, this contention is countered by PW4 with definite answers. Questions have been put to PW4 that he did not get relevant documents from the Excise Department. PW4 testified that Excise Inspector, Attingal provided the requisite information to identify the licensees and the toddy shop. In spite of cross-examination, I do not find any reason to hold that PW4 has been discredited so as to discard his testimony.
Crl.Appeal No.971/2005 5
8. PW3 was also in the Police party along with PW4 at the material time. He also meticulously deposed about the search and seizure of the contraband. He spoke about the material documents and recovery of material objects. In spite of cross-examination on PW3, nothing worthwhile could be elicited by the defence to doubt his veracity.
9. PWs 1 and 2 are the independent witnesses cited to prove the seizure of the contraband from the toddy shop. PW1 failed to support the prosecution case in its entirety. However, he witnessed taking out some articles by Police from the toddy shop. He admitted his signature on Ext.P1 search list. Even though, PW1 did not testify that he found the Police recovering arrack from the toddy shop, he stated that the Police recovered some articles from the toddy shop. According to PW1, he used to go to the shop for taking food. PW2 also admitted that he was standing outside the toddy shop at the time of search and seizure. He also acknowledged the presence of PW1 at that time. This witness also admitted his signature on Ext.P1 search list. In spite of his failure to testify that he saw the recovery of arrack from the toddy shop, on other material aspects, he supported the prosecution case.
10. Ext.P1 search list of property and Ext.P5 forwarding note were produced in court on the next day by the detecting officer. There cannot be any accusation that there was delay in producing them in court and the consequent possibility of tampering with evidence. Ext.P8 analysis report Crl.Appeal No.971/2005 6 would show that the seal on the packet was intact and found tallied with the sample seal provided. Ext.P6 letter issued by the Excise Circle Inspector, Attingal shows that toddy shop No.33 of Varkala Excise Range was given in license to the appellant and one Muraleedharan during the year 1999- 2000. It has been clearly stated in the testimony of PWs 3 and 4 and also in the material documents that the number of the toddy shop was displayed on the board placed outside the toddy shop. However, the names of licensees were not mentioned in the board.
11. Learned Public Prosecutor submitted that the contention of the appellant that the shop, which he was conducting with due licence was not the shop from where recovery of illicit arrack was made, cannot be sustained in view of the contents in Ext.P11 certificate issued by the Grama Panchayat. It shows that a thatched shed bearing the description mentioned in Ext.P11 belonged to one N.Girishan and that it was assessed as an arrack shop during the year 1993. It is come out in evidence that the detection and recovery of contraband was effected from this shop.
12. Exts.P1 to P3 were properly proved by PWs 3 and 4. These documents were prepared contemporaneous to the search and seizure. As mentioned earlier, list of property (Ext.P4) and forwarding note (Ext.P5) were produced before the court at the earliest point of time. Therefore, contention of the appellant that there were procedural lapses on the part of Crl.Appeal No.971/2005 7 the Investigating Officer cannot be accepted.
13. Learned Public Prosecutor relied on the decision in Abdul Rasheed v. State of Kerala (2008 (3) KLT 150) to contend a proposition that if testimony of official witnesses is blemishless and is free from suspicion and inspires confidence, hostility shown by ill-motivated independent witnesses is of no consequences. Learned Single Judge of this Court was considering a case involving an offence under Section 292 of the Indian Penal Code. The above said principle is beyond any possible dispute. In this case, the oral evidence adduced by PWs 3 and 4 coupled with the documents would go to show that in the toddy shop, conducted by the appellant and the 1st accused, illicit arrack was kept and it was intended for unauthorised sale. Recovery of materials like pair of scissors, empty covers, buckets for pouring liquor from packets, etc. coupled with recovery of cash indicate the accomplished sale of illicit arrack. Merely for the reason that the appellant was not present at the time of detection will not absolve him from the criminal liability as he was the licensee of the shop.
14. The fact that he was the licensee of the toddy shop, though disputed by the learned counsel for the appellant, is properly established by evidence. Certain provisions of the Kerala Abkari Shops Disposal Rules, 2002 (for short, "the Rules") were pressed into service to contend that the prosecution failed to discharge their duty of establishing that the Crl.Appeal No.971/2005 8 appellant was a licensee of the toddy shop. Chapter IV of the Rules deals with the general conditions applicable to the sale of toddy shops. Rule 5 of the Rules specifically deals with the grant of privilege of vending toddy and its conditions. Rule 5(16) requires that the person in whose name the sale of toddy shop is confirmed, shall execute an agreement in Form III appended to the Rules. Learned counsel argued that non-production of Form III is fatal to the prosecution case. I am afraid, I cannot accept this contention for the reason that at no point of time during trial such a contention was raised. It is taken up for the first time in the appeal. Apart from that, documents produced clearly indicate the involvement of the appellant in the sale of illicit arrack through a toddy shop licensed in his name. Therefore, this contention of the appellant has to fail.
15. Sum total of the discussion is that there is no illegality or irregularity in convicting the appellant for the said offences. Learned counsel for the appellant contended that severe punishment has been imposed on the appellant by the trial court. Considering the plea raised by the appellant at the time of hearing on sentence and all other attending circumstances, I find that the sentence can be suitably modified.
In the result, the appeal is partly allowed. Conviction of the appellant under Sections 8(1) and 8(2) of the Abkari Act is hereby confirmed. He shall undergo rigorous imprisonment for a period of one year and pay a fine of `1,00,000/- (Rupees one lakh only) and in default Crl.Appeal No.971/2005 9 of payment of fine, he shall undergo rigorous imprisonment for a period of three months. Appellant is entitled to get the benefit of set off under Section 428 Cr.P.C. for the period of custody he has undergone in this case.
All pending interlocutory applications will stand dismissed.
A. HARIPRASAD, JUDGE.
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