Kerala High Court
Vijayan vs State Of Kerala on 21 February, 2014
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
FRIDAY, THE 21ST DAY OF FEBRUARY 2014/2ND PHALGUNA, 1935
CRL.A.No. 1628 of 2004 (A)
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SC 421/2001 of ADDITIONAL SESSIONS COURT (ADHOC-I), PATHANAMTHITTA
CP 88/2001 of JUDICIAL FIRST CLASS MAGISTRATECOURT-I,PATHANAMTHITTA
APPELLANT(S)/ACCUSED,:
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VIJAYAN, NEPPIKAL VEEDU,
MEZHUVELI VILLAGE.
BY ADVS.SRI.V.N.ACHUTHA KURUP (SENIOR ADVOCATE)
SRI.BINDU SREEKUMAR
RESPONDENT(S)/STATE AND EXCISE INSPECTOR.:
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1. STATE OF KERALA, REP.BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2. THE EXCISE INSPECTOR, EXCISE RANGE,
PATHANAMTHITTA.
BY PUBLIC PROSECUTOR SMT.JASMINE
THIS CRIMINALAPPEAL HAVING BEEN FINALLYHEARD ON 21-02-2014, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
A.HARIPRASAD, J.
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Crl.Appeal No.1628 of 2004
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Dated this the 21st day of February, 2014.
JUDGMENT
Appeal filed under Section 374(2) of the Code of Criminal Procedure (for short, "Cr.P.C.").
2. Appellant challenges the conviction and sentence imposed on him by the learned Additional Sessions Judge (Adhoc-I), Pathanamthitta for an offence under Sections 8(1) and 8(2) of the Abkari Act (for short, "the Act").
3. Shorn off unnecessary details, the prosecution case is as follows:
On 06.09.1999 at 6.15 p.m., when CW1, the Preventive Officer of the Excise Department and his party were on patrol duty, they found the appellant walking through a public road carrying a white jerry can of 2 = litre capacity in his right hand. On seeing the Excise party, the appellant became perplexed. On seeing this disturbance of the appellant, the Excise Officers converged on him and the jerry can possessed by him was examined. It was found to contain 1 = litre of liquid, which on close examination revealed to be illicit arrack. The appellant was arrested after preparing documents from the place of occurrence itself. He was taken to Crl.Appeal No.1628/2004 2 the Excise Office. On the next day, material objects and the appellant were produced before the court.
4. At the trial, PWs 1 to 6 were examined. Exts.P1 to P9 and MO1 were marked. There was no defence evidence. On the basis of the evidence adduced, learned Additional Sessions Judge convicted the appellant for the above said offences and imposed punishment.
5. Heard the learned counsel for the appellant and the learned Public Prosecutor.
6. Learned counsel for the appellant contended that the court below failed to consider the flaws in the prosecution case. The evidence adduced by the prosecution fell short of establishing the guilt of the appellant/accused. I have been taken through the evidence of material witnesses on the side of prosecution. PW1 was the Excise Guard. At the time of detection of the offence, he was accompanying CW1, the Preventive Officer. It has come out in evidence that since CW1 met with an accident and was not able to come to court, he was not examined. PW1 deposed that on the date of occurrence at about 6.15 p.m., CW1, PW1 and others found the appellant carrying a can of 2 = litre volume. On seeing the Excise party, he tried to withdraw. He was restrained and the contents of the can was examined. They were satisfied that it was illicit arrack. It is the case of PW1 that this fact was shown to the witnesses also. PW1 was Crl.Appeal No.1628/2004 3 subjected to cross-examination. He deposed that the entire contraband in MO1 can was produced before the court. Actually sample for analysis was drawn from the court. Ext.P1 is the mahazar prepared from the place of occurrence. The contents of Ext.P1 and the oral evidence adduced by PW1 support one another. Ext.P1 mahazar and Ext.P4 crime and occurrence report and Ext.P5 arrest memo were produced on the next day before the concerned Magistrate Court. Erxt.P6 remand report was also produced before the court along with the appellant. Court below considered the regularity of the proceedings in respect of the detection and follow up actions.
7. Learned counsel for the appellant contended that there is delay in producing the property list and the forwarding note before the court. I have examined Ext.P7 property list and Ext.P8 copy of forwarding note. It is seen that these documents were received in court only on 08.09.1999. Learned counsel for the appellant would contend that one day's delay has not been explained by the prosecution. Court below considered this aspect in the impugned judgment. There was no suggestion at the time of examination of PWs 1 and 4 as to the possibility of tampering with the contraband before producing in the court. It is seen that 180 ml. of contraband was taken as sample from the Magistrate's Court. Ext.P9 chemical analysis report would show that the seal provided Crl.Appeal No.1628/2004 4 by the court was found to be intact when the sample reached in the Chemical Examiner's Laboratory.
8. Learned counsel for the appellant heavily relied on two decisions of this Court rendered by learned Single Judges, i.e., (i) Sasidharan v. State of Kerala (2007 (1) KHC 275) and (ii) Sathi v. State of Kerala (2007 (1) KHC 778). In Sasidharan's case (supra), learned Single Judge had occasion to consider an appeal preferred from the Central Prison by a convict for an offence under Section 55(a) of the Act. Facts in the case showed that though properties were seized by PW5 in the case from the accused and it reached the court on 16.05.1998, he had not drawn any sample from the alleged contraband. It was also found that PWs 3 and 4 were also in charge of the investigation. None of the officers made a requisition to the court to draw sample from the contraband produced in the court. Further, no forwarding note was submitted before the court requesting the learned Magistrate to take and forward sample for chemical analysis. In this factual background, learned Single Judge observed that the prosecution should fail in the absence of evidence regarding as to who drew the sample for chemical examination and on what date the sample was despatched to the Chemical Examiner's Laboratory. In Sathi's case (supra), facts would show the following features. Learned Single Judge extracted the order passed by the learned Crl.Appeal No.1628/2004 5 Magistrate regarding production of the sample. On going through the order, learned Single Judge observed that there was not even a direction in the above endorsement to take sample and what was the quantity of sample to be taken. According to the learned Single Judge, the direction issued by the Magistrate fell short of the required standard. In that context, it was observed that the Magistrate should have been passed appropriate orders and the Property Clerk should have been examined to prove the case of the prosecution.
9. The decisions mentioned above can be distinguished on facts. PW4 in this case received MO1 can and it was in a properly sealed condition. After registration of the crime on 06.09.1999 itself, the accused was produced before the court along with the material papers on 07.09.1999. Only thing is that MO1 can and its contents were produced only on 08.09.1999. As mentioned above, in the absence of a specific challenge regarding the tampering of the contraband, that must have happened within one day, it cannot be assumed that the appellant/accused suffered any prejudice on account of delay of one day. Therefore, the principles in the above decisions cannot be applied as the facts in the reported decisions and this case are clearly different. On perusal of the entire evidence, I am of the view that the learned trial Judge rightly convicted the accused for offences under Sections 8(1) and 8(2) of the Act. Crl.Appeal No.1628/2004 6
10. In the question of sentence, it appears that there can be some leniency considering the age of the appellant and other attending circumstances as borne out from the answers given by him at the time of hearing on sentence. Hence the sentence is modified as under.
In the result, the appeal is partly allowed. Conviction of the appellant under Sections 8(1) and 8(2) of the Abkari Act in S.C.No.421 of 2001 on the file of Additional Sessions Court (Adhoc-I), Pathanamthitta is hereby confirmed. Appellant shall undergo rigorous imprisonment for six months and pay a fine of `1,00,000/- (Rupees one lakh only) and in default of payment of fine, undergo simple imprisonment for a period of three months for the said offence. Appellant is entitled to get 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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