Kerala High Court
Illias vs State Of Kerala on 16 August, 2012
Author: P.S.Gopinathan
Bench: P.S.Gopinathan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN
THURSDAY, THE 16TH DAY OF AUGUST 2012/25TH SRAVANA 1934
CRL.A.No. 1249 of 2003 ( )
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SC.95/2001 of ADDL.DISTRICT COURT (ADHOC)-II, PALAKKAD
APPELLANT/ACCUSED:
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ILLIAS, S/O,ISMAIL,
MANNATHPARA, VALIYAPARAMBU, KUTHANNUR,
PALAKKAD DISTRICT.
BY ADVS.SRI.P.VIJAYA BHANU
SMT.P.MAYA
RESPONDENT/COMPLAINANT:
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STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA AT ERNAKULAM.
BY ADV. PUBLIC PROSECUTOR, SRI.NOUSHAD THOTTATHIL
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
16-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.S.GOPINATHAN, J.
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Crl.A.No.1249 OF 2003
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Dated this the 16th day of August, 2012
J U D G M E N T
~~~~~~~ The Sub Inspector of Police, Kuzhalmannam Police Station, who was examined as PW6, filed a final report accusing the appellant for offence under Section 55(a) of the Abkari Act with an allegation that, at 7.40 p.m., on 10.3.1999, the appellant was found possessing 5 litres of illicit arrack in a jerry can, which was marked as MO1, at his house site. PW7, the predecessor of PW6, on getting information went to the house of the appellant and he was caught red handed. The appellant was arrested, contraband was seized and sample was taken. The sample and the contraband was sealed then and there in the presence of the witnesses. Returning to the Police Station, a case was registered as Crime No.50/99. The investigation was taken over by PW5, the Assistant Sub Inspector. Later, it was taken over by PW6, who after completing the investigation, submitted the chargesheet before the Judicial Magistrate of the First Class-I, Palakkad, where it was numbered as C.P.No.21/2000. On finding that the offence alleged is exclusively triable by a Crl.A.No.1249/2003 2 court of session, by order dated 9.3.2001, the case was committed to the court of session, Palakkad. The learned Sessions Judge, in turn, made over the case to the Additional Sessions Judge (Adhoc-II), Palakkad.
2. In response to the process issued, the appellant entered appearance before the Additional Sessions Judge and pleaded not guilty when the charge was framed, read over and explained. Therefore, he was sent for trial. On the side of the prosecution, PWs 1 to 7 were examined. Exts.P1 to P6 and MO1 were marked. After closing the evidence for the prosecution, the appellant was questioned under Section 313 of the Code of Criminal Procedure. He took a plea of total innocence and further stated that somebody quarrelled in a nearby toddy shop and he was falsely implicated. Though he was called upon to enter his defence, no defence evidence was let in. The learned Additional Sessions Judge, on appraisal of the evidence, arrived at a conclusion of guilty. Consequently, the appellant was convicted and sentenced to rigorous imprisonment for two years and a fine of rupees one lakh with a default sentence of rigorous Crl.A.No.1249/2003 3 imprisonment for six months. Aggrieved by the above conviction and sentence, this appeal is preferred.
3. I have heard Adv.Sri.V.C.Sarath, the learned counsel appearing for the appellant and Sri.Noushad Thottathil, the learned Government Pleader. Perused the judgment impugned as well as the evidence on record.
4. PW7, the Sub Inspector of Police, would depose that at 7 p.m., on 10.3.1999, he got information that the appellant was dealing arrack at his house at Valiyaparamba. He proceeded to the spot of occurrence along with the police party and found the appellant standing in his property with MO1 jerry can containing full of liquid. The appellant was intercepted and the contents in MO1 was tested by smell and taste. It was convinced that the liquid contained in MO1 was nothing but illicit arrack. The appellant was arrested. MO1 with liquid was seized. In three bottles 180 mls each was taken as sample. MO1 and the sample bottles were sealed then and there. Ext.P1 is the arrest memo. Ext.P2 is the seizure mahazar. Returning to the Crl.A.No.1249/2003 4 Police Station, a case was registered for which Ext.P6 First Information Report was prepared. The investigation was taken over by PW5, the Assistant Sub Inspector of Police. The evidence of PW7 is corroborated by Ext.P2. PW1, a Police Constable accompanying PW7, had also given evidence corroborating with the evidence of PW7.
5. PW2 is an attestor to Ext.P1 arrest memo. He had admitted his signature in Ext.P1 and further stated that he had seen the Sub Inspector seizing MO1 with liquid. PW3 is an attestor to Ext.P2 seizure mahazar. Though he denied of witnessing the seizure of the liquor from the appellant, had admitted witnessing the arrest of the appellant. He would further depose that he had also witnessed the sampling and that the appellant was having dealings in liquor. PW4, an attestor to Ext.P3 scene mahazar, had proved Ext.P3 scene mahazar. PW4 also had deposed that the appellant was having liquor business. Crl.A.No.1249/2003 5
6. PW5, the Assistant Sub Inspector of Police, would depose the process of investigation. He had gone to the spot and prepared Ext.P3 scene mahazar. Ext.P4 forwarding note was also proved by him. He would further depose that the material objects and the samples were in his safe custody and that he produced the same on 16.3.1999 before the court. He would explain that owing to special duty he could not produce the material objects before the court on the next day. PW6 would depose about the submission of the charge sheet and the receipt of Ext.P5 report of the chemical examiner. Ext.P5 would show that two of the sample bottles contained 28.11% by volume of ethyl alcohol. The 3rd sample would contain 28.41% of ethyl alcohol by volume.
7. Carefully going through the evidence of PWs 1, 2, 3, 4 and 7, I find little reason to disbelieve them. Except some minor discrepancies here and there, nothing was revealed to show that the case was falsely foisted against the appellant. There is no suggestion to any of the witnesses that they had got any axe to grind against the appellant. It is also pertinent to note that Crl.A.No.1249/2003 6 PWs 3 and 4 had deposed that the appellant had dealings in liquor. Such being the evidence on record, I find little reason to interfere with the finding of the facts by the trial court. The conviction is based upon cogent evidence and requires no interference.
8. The learned counsel sought for leniency in sentence with a plea that the quantity seized is only 5 litres. At the same time, it cannot be ignored that PWs 3 and 4 had deposed that the accused was having business in illicit liquor. Therefore, in fact, the appellant is not entitled to much leniency. However, taking note of the quantity involved, I find that a sentence of rigorous imprisonment for nine months with the minimum fine as imposed by the trial court would meet the ends of justice.
9. In the result, the appeal is allowed in part. While confirming the conviction, the substantive sentence is reduced to rigorous imprisonment for 9 months. The appellant is directed to surrender before the trial court, which shall see the execution of sentence and report compliance. The under trial Crl.A.No.1249/2003 7 imprisonment, if any, shall be set off. In the event of any deposit that shall be given credit to.
(P.S.GOPINATHAN, JUDGE) ps/16/8