Kerala High Court
Narayana Pillai vs State Of Kerala Represented By The on 18 January, 2012
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
WEDNESDAY, THE 18TH DAY OF JANUARY 2012/28TH POUSHA 1933
CRA.No. 2451 of 2007 (B)
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[SC.519/2003 of ADDL.DISTRICT & SESSIONS COURT, FAST TRACK (ADHOC),
MAVELIKKARA]
APPELLANT/ACCUSED(S):
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NARAYANA PILLAI,C.NO.1901,
CENTRAL PRISON, TRIVANDRUM.
BY STATE BRIEF SRI.SREEJITH.S.NAIR.
RESPONDENT/COMPLAINANT(S):
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STATE OF KERALA REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
R, BY PUBLIC PROSECUTOR SMT.S.HYMA.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-01-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V.K.MOHANAN, J.
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Crl.A.No. 2451 of 2007 B
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Dated this the 18th day of January, 2012
JUDGMENT
The sole accused in S.C.No.519 of 2003 of the court of Additional District and Sessions Judge, Fast Track (Adhoc) Court, Mavelikkara is the appellant as he is aggrieved by the conviction and sentence imposed on him by judgment dated 23.6.2007 in the above sessions case.
2. The prosecution case is that on 19.5.2000 at about 5.30 p.m., PW1, the Preventive Officer attached to the Office of the Circle Inspector of Excise, Mavelikkara, while on partol duty through Vettiyar Village, Arunoottimangalam Muri and when reached at the Panchayath road in front of the house of one Raju Bhavanam George on the north of Panchayat well, found the accused transporting illicit arrack of about 1 litre in a 1= litre plastic bottle, which was seized by PW1 and arrested the accused. On the basis of the above allegation, Crime No.51 of 2000 was registered in the Mavelikkara Excise Range Crl.A.No.2451 of 2007 :-2-:
for the offences punishable under Sections 8(1) and (2) and 55(a) of the Kerala Abkari Act. On completing the investigation, a report was filed before the Judicial First Class Magistrate Court, Mavelikkara based upon which C.P.No.76 of 2002 was instituted and finally, by order dated 19.5.2003, the learned Magistrate committed the case to the Sessions Court wherein the same is received as S.C.No.519 of 2003 and the same was made over to the court of Assistant Sessions Judge, Mavelikkara and when the court of Additional District and Sessions Judge (Adhoc), Fast Track, Mavelikkara was established, the case is transferred to the present trial court for disposal.
3. When the accused appeared, after hearing the prosecution as well as the defence, a formal charge was framed against the accused for the offence punishable under Sections 8(1)(2) and 55(a) of the Kerala Abkari Act and when the said charge was read over and explained to the accused, he denied the same and pleaded not guilty. Consequently, the prosecution adduced its evidence consisting of the Crl.A.No.2451 of 2007 :-3-:
oral testimony of PWs.1 to 6 and the documentary evidence Exts.P1 to P8. Besides the above, the plastic bottle, having the capacity of 1= litre, containing 800 ml.arrack is identified and marked as MO1. No evidence either oral or documentary produced from the side of the defence. Finally, after considering the available evidence and materials, the learned Judge of the trial court has concluded that the prosecution has succeeded in establishing the guilt of the accused beyond reasonable doubt that the accused was found in illegal possession of illicit arrack in violation of the Abkari Act and Rules and thereby, the accused has committed the offences punishable under Sections 8(1) and (2) and 55(a) of the Abkari Act and accordingly, the accused is convicted thereunder. On such conviction, the trial court sentenced the accused to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.1 lakh and in default, he is directed to undergo rigorous imprisonment for a further period of one year. Set off is allowed. It is the above finding, conviction and Crl.A.No.2451 of 2007 :-4-:
sentence challenged in this appeal.
4. As the appellant/accused was undergoing imprisonment in pursuance of the impugned judgment, he preferred this appeal from the jail and on receiving the same, as ordered by this Court, the Registry has appointed Adv.Sri.K.P.Harish from the panel of State Brief to prosecute the appeal for and on behalf of the appellant. Subsequently, the appellant engaged his own counsel viz., Mr.R.Sunilkumar. But subsequently, the said Sunil Kumar has filed a memo dated 14.11.2011 stating that there was no proper instruction though the said Counsel contacted the appellant and his two sons. In the memo, it is submitted that the said counsel is unable to argue the matter and there is no instruction from the appellant. It is also relevant to note that the said memo was filed after the appellant was released from the jail after having obtained an order suspending the execution of the sentence imposed on him, as per the order dated 28.11.2008 of this Court in Crl.M.A.No.11861 of 2008. As the Crl.A.No.2451 of 2007 :-5-:
counsel, who was holding vakalath, submitted that he is unable to proceed with the appeal and there is lack of instructions from the appellant, this Court issued summons requiring the appellant to appear before this Court. Though the appellant received the summons, he did not respond to the instructions issued by this Court and consequently, by order dated 15.12.2011 this Court directed the Registry to issue arrest warrant against the appellant to be executed through the Superintendent of Police, Alleppey. The said warrant is executed and accordingly, the appellant is arrested and produced before this Court at 10.15 a.m. on this date. He was not having any convincing explanation for his non-appearance though summons were received. As the counsel, who was holding vakalath, has already filed a memo as stated above, the vakalath already filed by the said counsel is treated as relinquished by him and accordingly, Advocate Sri.Sreejith.S.Nair is appointed by the Registry as directed by this Court. Thus, I have heard Advocate Sreejith.S.Nair, learned counsel Crl.A.No.2451 of 2007 :-6-:
appearing for the appellant and the learned Public Prosecutor.
5. As I indicated earlier, to substantiate the above allegation against the appellant, though the prosecution has cited and examined six witnesses, among those six witnesses, PWs.2 and 5 were independent witnesses, but they turned hostile to the prosecution. But, the court below, relying upon the evidence of PWs.1,3,4 and 6 and the other documentary evidence, convicted the appellant. Among the official witnesses, it is PW1, the then Preventive Officer attached to the Office of the C.I. of Excise, Mavelikkara is the officer who detected the crime. When PW1 was examined, he had deposed in terms of the prosecution allegation and according to him, when himself and party were on patrol duty and when they reached in front of the house of one Raju Bhavanbam George, Vettiyar Vilalge, Arunoottimangalam Muri, they found the appellant having in his possession a plastic bottle with liquid and the plastic bottle was having the capacity of 1= litre. According to PW1, on suspicion, the Crl.A.No.2451 of 2007 :-7-:
appellant was intercepted and the liquid contained in the bottle in the presence of the appellant was identified as illicit arrack by smelling and tasting. Thus, according to PW1, he arrested the accused and seized the contraband article and samples of 200 ml. which are drawn and the said sample were sealed and labelled. According to PW1, the entire proceedings for the seizure of the contraband article and the drawing of sample and the arrest of the accused are recorded in the seizure mahazar which is produced and marked as Ext.P1. When PW1 was examined, Ext.P2 arrest notice, Ext.P3 arrest memo and Ext.P4 arrest intimation were got marked and MO1 plastic bottle containing 800 ml. illicit arrack was also identified and marked as MO1. According to PW1, after the seizure of the contraband article and arrest of the accused, they returned to the Excise Office and the contraband articles as well as the accused were entrusted with PW4, the Excise Inspector of Mavelikkara Excise Range. PW3 is also the then Preventive Officer attached to the Office of the C.I.of Excise, Crl.A.No.2451 of 2007 :-8-:
Mavelikkara who accompanied PW1 during the detection and seizure of arrack and arrest of the accused. When PW3 was examined, he had also deposed in par with the deposition of PW1. PW4, on receiving the accused and the contraband articles, registered EXt.P5 occurrence report and he has also produced the contraband article and the accused before the court as per Ext.P6 property list and Ext.P7 remand application, respectively. PW6, the then Excise Inspector of Mavelikkara Excise Range undertook the investigation and he had questioned the witnesses and when he was examined, Ext.P8 report of the Assistant Chemical Examiner to Government is produced and marked and the said certificate shows that the samples contains 28.41% by volume of ethyl alcohol. PW6 eventually laid the charge on completing the investigation. It is the above evidence and materials, relied on by the court below in support of its finding and convicting the appellant.
6. Learned counsel for the appellant vehemently submitted that Crl.A.No.2451 of 2007 :-9-:
the evidence of PWs.1,3,4 and 6 cannot be believed since they are official witnesses and their evidence are not corroborated by independent evidence. It is also the submission of the learned counsel that though the prosecution has raised allegation to the effect that the appellant was engaged in the sales of arrack, no cash is recovered in support of the above allegation. Thus, according to the learned counsel for the appellant, in the absence of sufficient and independent evidence, the finding of the court below is incorrect and illegal and liable to be interfered with.
7. On the other hand, the learned Public Prosecutor submitted that though PWs.2 and 5 independent witnesses turned hostile, the evidence of official witnesses positively proves the case of the prosecution and their evidence is intact. According to the learned Public Prosecutor, the court below is fully correct in accepting and acting upon the evidence of official witnesses in support of its finding and therefore, no interference is warranted.
Crl.A.No.2451 of 2007
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8. I have carefully considered the arguments advanced by the counsel for the appellant and the learned Public Prosecutor. I have perused the judgment of the trial court and also scrutinised the deposition of the witnesses and other documents.
9. The specific case of the prosecution is that the accused was found at 5.30 p.m. on 19.5.2000 in possession of l litre of illicit arrack in a bottle having the capacity of 1= litres. In the light of the rival contentions advanced by the counsel for the appellant and the learned Public Prosecutor and in the light of the evidence and materials involved in the case, the question to be considered is whether the trial court is justified in its finding that the prosecution has succeeded in establishing its case beyond reasonable doubt against the appellant that he was found in possession of 1 litre of arrack.
10. I have already referred to the available evidence on record.
PW1 is the officer who detected the crime, who was accompanied by PW3. When PWs.1 and 3 were examined, they have deposed strictly Crl.A.No.2451 of 2007 :-11-:
in accordance with the prosecution allegation. Though PWs.1 and 3 were subjected to lengthy cross-examination, nothing brought on record to discredit their versions. Of course, when PWs.2 and 5 the independent witnesses were examined, they turned hostile. There is no legal impediment in accepting the evidence of official witnesses and the rule of prudence demands for corroboration from independent source when their evidence are doubtful or their deposition contains infirmities or contradictions, make it unbelievable. As I indicated earlier, in the present case, though the official witnesses were cross- examined extensively, not even a single contradiction or infirmity brought on record to doubt the veracity of the prosecution case. It is relevant to note that after the seizure of the contraband article and the arrest of the accused, at 5.30 p.m. on 19.5.2000 PW1 produced the accused and the contraband articles before PW4, who in turn registered the crime and produced the accused as well as the contraband article and the sample before the court on the next date Crl.A.No.2451 of 2007 :-12-:
itself. So, there is absolutely no delay in producing the accused or the contraband article before the court. Ext.P8 chemical analysis report shows that the sample bottles were intact. It is also pertinent to note that when the witnesses were examined, there was no serious challenge against the investigation and nothing brought on record to show that the investigation is improper or illegal. The findings of the court below are fully supported by the evidence and materials on record.
11. In the light of the above discussion and the evidence referred to above, I am of the view that the finding of the court below that the prosecution has succeeded in establishing the guilt of the accused beyond reasonable doubt is fully correct and justified and no interference is warranted and accordingly, the conviction recorded by the court below is confirmed.
12. Regarding the sentence, the learned counsel for the appellant submitted that a lenient view may be taken since according Crl.A.No.2451 of 2007 :-13-:
to the counsel, at the time of the commission of the alleged offence, the appellant was at the age of 52 years. It is also the submission of the learned counsel that the appellant is not involved in any other similar crimes and especially when the quantity involved in the present case is one litre, a lenient view may be taken. According to me, the above submission of the learned counsel for the appellant requires positive consideration. As the appellant is present in this Court as he was arrested and produced, I have heard the appellant also regarding the sentence. He had submitted before me that his wife expired during the month of June 2011 and he is at the age of 60 years. Having regarding to the above facts and the mitigating circumstances, I am of the view that the sentence imposed against the appellant requires modification and according to me, one year rigorous imprisonment will be sufficient to meet the ends of justice and while confirming the sentence to pay fine, the default sentence can be modified and reduced from one year rigorous imprisonment to Crl.A.No.2451 of 2007 :-14-:
three months rigorous imprisonment and the benefit under Section 428 of Cr.P.C. can be extended in favour of the appellant. Accordingly, while confirming the conviction of the appellant as recorded by the trial court for the offences under Sections 8(1) and (2) and 55(a) of the Abkari Act, the substantial sentence is reduced from three years to one year rigorous imprisonment and while confirming the sentence of fine, the default sentence is modified and reduced to three months rigorous imprisonment. Set off is allowed under Section 428 of Cr.P.C.
13. In the result, this appeal is dismissed confirming the conviction of the appellant under Sections 8(1) and (2) and 55(a) of the Abkari Act and subject to the modification with respect to the sentence as indicated above.
14. From the records, it appears that the accused was arrested on 19.5.2000 and he was released on bail on 16.6.2000. In pursuance of the impugned judgment dated 23.6.2007, he was sent to the Central Crl.A.No.2451 of 2007 :-15-:
Prison, Thiruvananthapuram and he was undergoing imprisonment till 28.11.2008. In the light of the modification effected by this Court with respect to the sentence, and since the appellant is given the benefit under Section 428 of Cr.P.C. and as he had already undergone the period of sentence including the default sentence now modified and fixed by this Court, the accused need not be sent to jail to undergo any further imprisonment. Therefore, the appellant, who is produced before this Court in terms of the warrant issued by the Registry of this Court on the basis of the order dated 15.12.2011, is released from custody as his further custody and imprisonment is not required. The Registry is directed to obtain appropriate acknowledgment from the appellant before his release from the custody.
V.K.MOHANAN, Judge MBS/ Crl.A.No.2451 of 2007 :-16-:
V.K.MOHANAN, J.
CRL.A.No.2451 OF 2007 JUDGMENT Dated:18.01.2012 Crl.A.No.2451 of 2007 :-17-: