Kerala High Court
Narayani vs The Excise Inspector on 8 July, 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
TUESDAY,THE 4TH DAY OF MARCH 2014/13TH PHALGUNA, 1935
CRL.A.No. 1534 of 2003 ( )
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AGAINST THE JUDGMENT IN SC NO. 92/2000 DATED 08.07.2003 PASSED BY
THE COURT OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAST TRACK
(ADHOC-II), KOZHIKODE
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APPELLANT/ACCUSED:
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NARAYANI, W/O. SEKHARAN
AGED 52 YEARS, KANNORAKANDY HOUSE
KOKKALLUR AMSOM
KOYILANDY TALUK
BY ADV. SRI.SUNNY MATHEW
RESPONDENT/COMPLAINANT:
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THE EXCISE INSPECTOR
BALUSSERY EXCISE RANGE
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM
BY PUBLIC PROSECUTOR SMT. JASMINE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-03-2014, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SD
A.HARIPRASAD, J.
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Crl.A.No. 1534 of 2003
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Dated this the 4th day of February, 2014
O R D E R
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Appellant challenges the conviction and sentence imposed by the trial court for an offence under Section 55 (a) of Abkari Act. The trial court after convicting the appellant imposed rigorous imprisonment for a period of two years and directed her to pay a fine of Rupees One lakh. A default sentence was also prescribed by the court below.
2. In order to establish the prosecution case, at the time of trial, five witnesses were examined and eight documents were marked on the side of the prosecution. Mo1 is the material object, There was no defence evidence. The prosecution case in brief is as follows:
3. Pws1 to 3 were the Preventive Officer and Excise Guards respectively working in the Excise Range Office, Balussery. While so, on 23.11.1998, they were engaged in patrolling duty. They found the appellant at about 12 noon near her house with a plastic can in her hand. On seeing the Excise party, the appellant tried to conceal the plastic can. Feeling suspicion, PW1 went to the appellant and questioned her. On examination, it was found that, she possessed about three liters of illicit arrack. After preparing a seizure mahazar and other documents and also after arresting the Crl.A.No. 1534 of 2003 2 appellant, she was taken to Excise Range Office and to the court on the same date.
4. Heard the learned counsel for the appellant and the learned Public Prosecutor.
5. The learned counsel for the appellant contended that the evidence adduced by the prosecution is totally insufficient to find the guilt of the appellant. According to him, there is incongruity between the testimony of PW1, the Preventive Officer and PW5, the Investigating Officer. PW1 conducted the detection, seizure and arrest of the appellant. He derived support from the testimony of PW2 and PW3 as well. PWs 1 to 3 deposed that on 23.11.1998, at about 12 hours in the noon, they sighted the appellant with a can and she was trying to hide the same. When she was intercepted and questioned, PWs 1 and 3 realised that she possessed illicit arrack. PW1 testified that, out of the three litre quantity of illicit arrack, a sample bottle of volume 180 ml was taken from the place of detection and it was properly sealed. It is his testimony that his personal seal was affixed on the bottle. This aspect has been spoken to by PWs2 and 3 also. Ext.P1 is the seizure Mahazar prepared from the place by PW1. Similarly, PW1 proved Ext.P2 arrest memo also. PW1 was subjected to searching cross- examination. In spite of tough and lengthy cross-examination, I find no dent of discredit made in the evidence adduced by him. Crl.A.No. 1534 of 2003 3 The learned counsel for the appellant would contend that there is a mismatch between the testimony of PW1 and PW5.
6. PW5 is the Investigating Officer. He would depose that, after recovery of contraband and arrest of the accused, the investigation was handed over to him on the same day by PW1. Ext.P5 is the property list proved by PW5. Ext.P6 is the Remand Report. Ext.P7 is a forwarding note prepared and submitted by PW5 before the court. There cannot be any dispute that the material papers and the accused were produced in the court on the date of detection itself. However, the learned counsel for the appellant contended that the forwarding note was not in the proper form and it cannot be said that the sample reached in the chemical examiner's Lab was in a tamper proof condition. In order to fortify the submission, the learned counsel for the appellant drew my attention to various answers given by PW5 during cross- examination. PW5 deposed that the sample and material objects contained personal seal of PW1. He deposed that he was satisfied about the correctness of the sampling and sealing. However, he answered to a question that there is no rule that the seal on the sample and the forwarding note should be one and the same.
7. It is true that this statement may not be completely acceptable. But the question to be considered here is whether providing an additional seal in the sample bottle could vitiate the Crl.A.No. 1534 of 2003 4 investigation. PW5 deposed that on the sample and forwarding note, he affixed his personal seal bears letter KRC. On a Perusal of Ext.P7 forwarding note, it can be seen that there are two specimen seals provided therein, namely that of the Judicial First Class Magistrate Court, Quilandy and that of PW1, KRC. Ext.P8, certificate of chemical analysis would show that the seal on the bottle was in tact, when it reached the laboratory and it found tallying with the sample seal provided.
8. The learned counsel for the appellant contended that non-affixing of seal of PW1 in Ext.P7 forwarding note is vital for the prosecution case. I am afraid, I cannot accept that contention because the ratio of the judicial pronouncements, including that in Ravi v. State of Kerala [2011 3 KLT 353] is that the prosecution should ensure that the sample reached the chemical lab without any possibility of tampering or meddling with the same. Merely for the reason that, the seal of PW1 was not affixed in Ext.P7, I cannot hold that veracity of the prosecution case is lost.
9. The learned counsel for the appellant contended that the principle in Pannayar v. State of Tamil Nadu [2009 9 SCC 152] should be applied in this case. In a case of murder, the Supreme Court considered the scope of adduction of new materials, which were very vital for the prosecution, at the time of re-examination of material witnesses. In other wards, the Supreme Court noticed that, Crl.A.No. 1534 of 2003 5 there was no justification for the prosecution for not adducing the material evidence, sought to be introduced for the first time through the re-examination of material witnesses. In that context it was held that, since the purpose of re-examination is only for clarification of doubts created in the cross-examination, one cannot supplement the examination in chief by way of re-examination and for the first time introduce totally new facts. It is settled law that every decision has to be understood in the facts and circumstances, in which it happened to be pronounced falls in our case and that in Pannayar's case (supra) are totally different.
10. The appellant's contention that Ext.P3 was introduced for the first time in re-examination through PW1 is of no legal consequence. Ext.P3 is the copy of Ext.P1. Ext.P3 was produced on the date of detection itself. However, original of Ext.P3, namely Ext.P1, was produced only on 04.10.1998. Considering the entire facts and circumstances and the fact that, all the material papers along with the accused were produced before the Magistrates on the date of detection, I find there is no legality or irregularity in the investigation enuring to the benefit of the appellant. On re- appreciation of evidence, I am of the view that the court below was correct in convicting the appellant for the alleged offence.
11. The learned counsel for the appellant submitted that the appellant being a lady and a person who have to support the family Crl.A.No. 1534 of 2003 6 deserves a lesser punishment. It is also contended that the court below was very harsh in imposing the punishment.
12. Considering the facts and circumstances of the case, I find that the sentence can be modified in this case.
In the result, the appeal is partly allowed. The conviction of the appellant is hereby confirmed. The appellant is convicted under Section 8(2) of the Abkari Act. Since the appellant is convicted under Section 8(2) of the Abkari Act, I find no necessity to convict the appellant again under Section 55(a) of the Abkari Act. Therefore, that part of the conviction of the court below is set aside. The appellant shall undergo rigorous imprisonment for a period of six months and pay a fine of Rupees one lakh and in default she shall undergo rigorous imprisonment for a period of two months.
Appellant is entitled to set off Section 428 for the period already undergone in this case. Appeal disposed of accordingly A.HARIPRASAD, JUDGE jm/