Kerala High Court
Divakaran vs State Of Kerala on 12 June, 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
THURSDAY, THE 16TH DAY OF MARCH 2017/25TH PHALGUNA, 1938
CRL.A.No. 1454 of 2013 (A)
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AGAINST THE JUDGMENT IN S.C 642/2011 of ADDL.SESSIONS COURT
(ADHOC)-II, KOZHIKODE DATED 12-06-2013
APPELLANT/ACCUSED:
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DIVAKARAN, S/O.RARICHAN
ARAPPATTAPURAYIL HOUSE,
KIDAVUR AMSOM, CHAMAL DESOM,
KOZHIKODE DISTRICT.
BY ADVS.SRI.R.SUDHISH
SMT.M.MANJU
SRI.K.R.RANJITH
RESPONDENT/COMPLAINANT:
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STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.C.S.HRITHWIK
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
16-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ab
P.UBAID, J.
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Crl.A No.1454 of 2013
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Dated this the 16th day of March, 2017
J U D G M E N T
The appellant herein challenges the conviction and sentence against him under Section 8(2) of the Kerala Abkari Act (for short 'the Act') in S.C No.642/2011 of the Court of Session, Kozhikode. The prosecution case is that when the excise party led by the Circle Inspector of Excise, Kozhikode came near the house of the appellant as part of routine patrol on the basis of secret reliable information, the accused was found possessing arrack in an aluminum vessel at the courtyard of his house at about 7.15 am on 30.10.2008. Though search was conducted at the house, nothing else could be seized by the excise party. The arrack contained in the aluminum vessel was seized as per a mahazar, a search list was also prepared at the spot of detection, and the accused was arrested on the spot. The accused and the properties were brought at the Excise Range Office, Thamarassery, where the Excise Inspector of the Crl.A No.1454 of 2013 2 Kunnamangalam Excise Range in charge of the Thamarassery Range, registered a crime and occurrence report. The Excise Inspector of the Thamarassery Range conducted investigation and submitted final report in the court of the learned Judicial First Class Magistrate I, Thamarassery under Section 8(2) of the Act. After complying with the procedural formalities the learned Magistrate committed the case to the Court of Session, from where it was made over to the learned Additional Sessions Judge (Ad Hoc) II, Kozhikode for trial and disposal.
2. The accused appeared before the trial court and pleaded not guilty to the charge framed against him under Section 8(2) of the Act. The prosecution examined seven witnesses in the trial court including the detecting officer, and proved Exts.P1 to P9 documents. MO1 and MO2 properties were also identified during trial. When examined under Section 313 Cr.P.C the accused denied the incriminating circumstances and projected a defence that his house was not in fact searched by the excise party, and nothing was in fact seized from his possession, as the prosecution would allege. He also examined his wife in defence as DW1 and proved his ration card as Ext.D1. On an appreciation of the evidence, the trial court found the Crl.A No.1454 of 2013 3 accused guilty under Section 8(2) of the Act. On conviction he was sentenced to undergo simple imprisonment for three years and to pay a fine of 1 lakh by judgment dated 12.6.2013. Aggrieved by the said judgment of conviction, the accused has come up in appeal.
3. On hearing both sides, and on a perusal of the materials including the defence evidence adduced by the accused, I find no scope or reason for interference in this case in appeal. I find that the accused was rightly convicted by the trial court under Section 8(2) of the Act.
4. PW1 is the Excise Circle Inspector who detected the offence, PW2 is the Excise Guard who assisted the Circle Inspector in the process of detection, PW5 is the Excise Inspector who registered Ext.P5 crime and occurrence report and PW7 is the Excise Inspector who conducted investigation and submitted final report in court. PW6 is only the Special Village Officer who prepared the Ext.P8 scene plan. PW3 and PW4 are the two independent witnesses examined by the prosecution. They turned hostile during trial. However, they identified their signature in the mahazar and the search list.
5. PW1 has given definite evidence proving the process Crl.A No.1454 of 2013 4 of detection in this case. He was the Excise Circle Inspector of Kozhikode, and the detection was made within his circle. His evidence is that while he was doing patrol within his circle he got secret reliable information about the accused. Immediately he prepared a search memo and sent it to court, and proceeded for search at the house of the accused. The house was located by the other members of the party. They stopped the vehicle at a distance of about 200 meters, and came behind the house at a distance of about 10 meters. Then they saw the accused immediately going to the house and coming out with an aluminum vessel. Immediately, the accused was intercepted and the liquid in the vessel was examined. By taste and odour the excise party identified it as arrack. At the instance of the accused another empty plastic can concealed under a coconut tree was also seized. The accused stated that he would bring arrack in the said plastic can for sale. The accused was arrested on the spot at the courtyard of the house and the aluminum vessel containing arrack was seized. Sample was taken from the total quantity of arrack, and it was properly packed and sealed. The remaining quantity of arrack contained in the aluminum vessel was poured to the empty plastic can and it was well Crl.A No.1454 of 2013 5 packed and sealed. Labels containing the signature of the accused and witnesses were affixed on the sample bottle, the aluminum vessel, and also on the plastic can containing arrack. Without any delay the accused and the properties were produced at the Excise Office. The defence could not bring out anything to discredit the evidence of PW1 regarding the process of detection. The witness well identified the plastic can and also the aluminum vessel during trial. There is no reason why PW1 should be disbelieved, or his evidence should be rejected. His evidence stands fully corroborated and supported by that of PW2, the Excise Guard.
6. Ext.P6 property list shows that the properties were produced in court on the date of detection itself. It contains a note by the learned Magistrate that the sample produced in court was found well packed and sealed. Ext.P7 forwarding note was also produced on the same day with the required specimen seal. Ext.P9 certificate of analysis shows that on analysis at the laboratory the sample was identified as arrack. The report shows that the seal on the sample bottle was found intact, and it tallied with the specimen provided in the forwarding note. There is nothing to show that there was any possibility of any sort of Crl.A No.1454 of 2013 6 tampering with the properties at any stage. The detection was made by a competent officer, and the crime and occurrence report was also registered by a competent officer. PW5 was the Excise Inspector of the Kunnamanangalm Excise Range. His evidence is that he happened to register the crime in this case as the Excise Inspector in charge of the Thamarassery Excise Range. Investigation was also made by an Excise Inspector, and he submitted final report in court. There also there is no infirmity or illegality. All the different functions under the Kerala Abkari Act in this case were done by the competent officers. The process of sampling also stands well proved by the evidence of PW1 and PW2. Thus I find that the prosecution has well proved the case on facts beyond any reasonable doubt.
7. One defence raised by the accused is that the house where the excise party conducted search does not in fact belong to the accused. In the Ext.P4 search list the house number is shown as KP-1/353. This is the number shown in the ration card produced by the accused at the spot of detection. To prove it otherwise the accused produced Ext.D1 ration card and examined his wife as DW1. In the Ext.D1 ration card the house number is different. That is why the defence contends that the Crl.A No.1454 of 2013 7 house searched by the excise party and mentioned in the Ext.P4 search list, does not belong to the accused. Ext.D1 ration card was issued in December 2008. The detection in this case was made on 30.10.2008. PW1 well admitted during cross examination that the house number prior to the application for the ration card was different. She does not remember the house number at that time. There is reason to believe that the house number shown in the search list is the number shown in the current ration card which was at that time used by the accused for ration purposes. The Ext.D1 ration card was subsequently obtained in December 2008. This ration card will not in any manner prove otherwise that the house searched by the excise party belongs to somebody else.
8. On an appreciation of the evidence as discussed above, I find that the conviction in this case is only to be confirmed in appeal. I find no illegality or infirmity or irregularity in the process of detection, or in the process of investigation, or in submitting final report in court.
9. Now the question of sentence. The jail sentence imposed by the trial court is simple imprisonment for three years. But the fine sentence is the minimum possible under the Crl.A No.1454 of 2013 8 law. Anyway, this Court can exercise the discretion to reduce the default sentence reasonably. The age of the accused at the time of detection was 51 years. Now he must be around 60 years. No other previous crime of similar nature is seen reported against him. In the above circumstances I feel it appropriate to reduce the substantive sentence to simple imprisonment for ten months. The default sentence also can be reduced to a term of two months.
In the result, the conviction against the appellant under Section 8(2) of the Kerala Abkari Act in S.C No.642/2011 is confirmed, and the appeal is accordingly disposed of. However, the jail sentence imposed by the court below will stand reduced to simple imprisonment for ten months. So also, the default sentence imposed by the court below for the fine amount will stand reduced to simple imprisonment for two months.
Sd/-
P.UBAID, JUDGE //True Copy// P.A to Judge ab