Kerala High Court
Vinesh.V.V vs State Of Kerala on 6 November, 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
FRIDAY, THE 06TH DAY OF NOVEMBER 2020/15TH KARTHIKA, 1942
Crl.Rev.Pet.No.1477 OF 2009
AGAINST THE JUDGMENT IN CRA 47/2007 DATED 15-12-2008 OF
ADDITIONAL SESSIONS COURT (ADHOC)-II, KALPETTA
SC 301/01 DATED 24-01-2007 OF ASSISTANT SESSIONS COURT,
SULTHAN BATHERY
REVISION PETITIONERS/APPELLANTS/ACCUSED Nos.1 & 2:
1 VINESH.V.V.,
S/O.VELAYUDHAN,
VALIYAVEETIL, KANIYARAM,
MANANTHAVADY.
2 LAKSHMANAN.M.V.,
S/O.VILLU,
MANHAPARAMBIL, KANIYARAM,
MANANTHAVADY.
BY ADV.SRI.JACOB SEBASTIAN
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,
REPRESENTING THE EXCISE INSPECTOR,
SULTHAN BATHERY RANGE IN CRIME No.13/2000.
By SENIOR PUBLIC PROSECUTOR SRI.M.S.BREEZ
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 04-11-2020, THE COURT ON 06-11-2020 PASSED THE
FOLLOWING:
Crl.R.P.No.1477 of 2009
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ORDER
Dated this the 06th day of November, 2020 Heard Sri.Jacob Sebastian, the learned counsel for the revision petitioners and Sri.M.S.Breez, the learned Senior Public Prosecutor for the State.
2. This criminal revision petition is directed against the judgment dated 15.12.2008 in Crl.Appeal No.47/2007 of the Additional Sessions Court (Ad hoc)-II, Kalpetta whereby the learned Additional Sessions Judge confirmed the judgment of conviction and sentence rendered by the learned Assistant Sessions Judge, Sulthan Bathery in S.C.No.301/01 on 24.1.2007. The revision petitioners were the accused 1 and 2 in Crime No.13/2000 of Sulthan Bathery Excise Range registered for the offence punishable under Section 55(a) of the Abkari Act.
3. The learned Assistant Sessions Judge found the accused guilty under Section 55(a) of the Abkari Act and convicted them thereunder. Accordingly, the accused were Crl.R.P.No.1477 of 2009 ..3..
sentenced to undergo rigorous imprisonment for two years each and to pay a fine of Rs.1,00,000/- each, in default of payment of fine to undergo simple imprisonment for six months each. The appeal was dismissed by the appellate court confirming the conviction and sentence imposed by the trial court.
4. The prosecution case in brief is that on 22.3.2000 at 3.30 am., the accused were found illegally transporting 300 litres of spirit by a jeep through the Muthanga Check Post to Kerala and thereby committed the offence punishable under Section 55(a) of the Abkari Act.
5. On the appearance of the accused before the trial court, after having heard both sides, the learned Assistant Sessions Judge framed charge under Section 55(a) of the Abkari Act. When the charge was read over to the accused, they pleaded not guilty.
Crl.R.P.No.1477 of 2009
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6. During the trial, PWs.1 to 6 were examined and marked Exts.P1 to P9 and MO1 on prosecution side. On closing the evidence of the prosecution, the accused were questioned under Section 313(1)(b) of Cr.P.C. When the accused were called upon to enter on their defence, they did not adduce any evidence.
7. PW1 was working as the Preventive Officer of Muthanga Check Post on 22.3.2000. On that day, at 3.30 am., while PW1 was checking vehicles along with Excise Guard and officials of the Sales Tax Department of Muthanga, a jeep bearing No.KRP-3313 came from Gundlupet to Sulthan Bathery stopped at the Check Post for checking. The jeep was checked in the presence of the witnesses and they found compartments under the backside of the jeep. He had opened two compartments under the backside of the jeep and found some liquid inside the compartments. On being questioned, according to PW1, the accused told them that the spirit was brought Crl.R.P.No.1477 of 2009 ..5..
from Begur in Karnataka State. PW1 further testified that the accused 1 and 2 could not furnish any documents which authorised them to transport spirit from Karnataka to Kerala.
8. PW1 had taken 200 ml of spirit in a 375 ml. bottle as sample and sealed the bottle. The label carrying the signature of the accused and witnesses was affixed on the bottle. PW1 identified the accused as the persons arrested from the scene of occurrence. PW1 identified MO1 sample bottle which was taken by the learned Magistrate from the spirit seized from the accused. PW3, an Excise Guard, was present along with PW1 at Muthanga Check Post on the date of detection of the offence. He supported the case of PW1. He identified the accused before court and identified MO1 sample bottle of spirit.
9. PW2 is an Excise Inspector of Sulthan Bathery Range, who registered the case. According to him, on Crl.R.P.No.1477 of 2009 ..6..
22.3.2000, thondy articles and case records were produced before the Sulthan Bathery Range Office. Subsequently crime was registered against the accused as Crime No.13/2000 by Ext.P5 First Information Report. On 22.3.2000, the accused were produced before the court. He prepared Ext.P7 forwarding note and sent to the court for sending the sample for chemical analysis. The thondy articles were produced before the court under Ext.P6 property list. The jeep bearing registration No.KRP-3313 which was involved in this case was produced before the Excise Commissioner, Wayanad.
10. PWs.4 and 5 are two independent witnesses. PW6 is the Excise Inspector, Sulthan Bathery Excise Range who investigated the case, questioned the witnesses, recorded their statements and filed the final report before the trial court. On 16.10.2000, PW6 went to the scene of occurrence and prepared Ext.P8 mahazar. Crl.R.P.No.1477 of 2009
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11. The learned counsel for the revision petitioners submitted that the crime was registered on 22.3.2000 and final report in the case was filed on 31.10.2001 after a long delay of 19 months. It is further contended that Ext.P7 forwarding note does not bear date and Ext.P8 scene mahazar was prepared long after the date of occurrence. The learned counsel for the revision petitioner submitted that the R.C owner of the vehicle was not arrayed as an accused and the prosecution failed to give a satisfactory explanation in this regard.
12. Per contra, the learned Senior Public Prosecutor submitted that the sample was sent for chemical analysis from the court and Ext.P9 chemical examination report would show that the sample contained 90.96% volume of ethyl alcohol. The sample was later identified to be rectified spirit. The learned Public Prosecutor further submitted that all the procedural formalities in this case as per the scheme of the Abkari Act have been complied Crl.R.P.No.1477 of 2009 ..8..
with and no grounds are made out to interfere in revision.
13. It has come out in evidence that during the course of inspection, photo copy of the R.C. book was seized by the detecting officer. But he had not mentioned the name of the R.C. owner in the seizure mahazar. It is a fact that the R.C. owner was not made as an accused in this case. Merely because the R.C. owner was not impleaded as an accused along with the accused in this case the same could not be taken as a ground to hold that the prosecution as against accused 1 and 2 were initiated with malafides. It is evident from Ext.P2 seizure mahazar that PW1 arrested the accused 1 and 2 while they were transporting spirit to Kerala State from Karnataka State. It is not necessary to state the details of compartments in the jeep and the volume of liquid therein. It is evident from Ext.P2 seizure mahazar that the accused were transporting spirit to Kerala through the vehicle bearing registration No.KRP-3313. PW1 noted concealed Crl.R.P.No.1477 of 2009 ..9..
compartments inside the jeep. PW1 also stated that he had taken sample from the concealed compartments. It is not necessary on the part of the PW1 to prove that how he had opened the concealed compartments and drawn the samples from the concealed compartments. No question was asked by the accused during cross- examination how PW1 had opened the concealed compartments and drawn the sample. Ext.P9 chemical analysis report would irresistibly lead to the inference that the sample contained ethyl alcohol. PWs.1 and 3 adduced evidence to show that when the accused were arrested they were found transporting the contraband article as alleged by the prosecution. The contraband article was seized from the possession of the accused and not from the possession of the registered owner of the vehicle.
14. Section 55(a) provides that conscious possession of the accused was necessary for the purpose of establishing the guilt. The accused were found Crl.R.P.No.1477 of 2009 ..10..
engaged in transporting spirit and were thus caught red handed. Hence absence of proof of ownership of the R.C. owner of the vehicle from where the accused were apprehended is immaterial. This is a case in which the possession of spirit along with the jeep used for transporting the contraband were seized from the possession of the accused. They had not accounted for their possession of the same. Hence the presumption under Section 64 of the Abkari Act is squarely attracted and the court is entitled to presume that in the absence of any satisfactory explanation of their possession of the contraband, the offence under Section 55(a) of the Abkari Act is prima facie attracted. It has come out in evidence that when the accused were arrested they were found in possession of the contraband articles.
15. It is true that PWs.4 and 5 did not support the prosecution case. They turned hostile to the prosecution. However, PWs.1 and 3 adduced reliable evidence to prove Crl.R.P.No.1477 of 2009 ..11..
that on 22.3.2000 at 3.30 am., PWs.1 and 3 were at Muthanga Excise Check Post and they stopped the jeep bearing No.KRP-3313 came from Gundlupet to Sulthan Bathery for checking. The jeep contained nearly 300 litres of spirit. The occurrence took place in the night. Merely because PWs.4 and 5 stated that they did not sign Ext.P2 mahazar as stated by PWs.1 and 3 the same is not sufficient to hold that the evidence of PWs.1 and 3 are unreliable. There is nothing on record to show that PWs.1 and 3 had any previous animosity towards the accused to foist a false case against them. The evidence adduced by PWs.1 and 3 are reliable. PW2 is the Excise Inspector of Sulthan Bathery Range who registered the case. He also stated that immediately after the occurrence, on 22.3.2000 the accused, thondy articles and the case records were produced before the Sulthan Bathery Range office and on the basis of the same he registered Ext.P5 crime and occurrence report. The accused were produced Crl.R.P.No.1477 of 2009 ..12..
before the court on 22.3.2000 itself. PW2 prepared Ext.P7 forwarding note and sent it to the court for sending the sample for chemical analysis. There was no delay in sending the sample to the court. The records were promptly transmitted to the court. All the procedural formalities have been complied with.
16. It has come out in evidence that the accused transported spirit from Karnataka State to Kerala State in contravention of the Abkari Act and the Rules made thereunder which is punishable under Section 55(a) of the Abkari Act. PWs.1 and 3 adduced evidence to show that the accused were knowingly in control of the vehicle where the contraband spirit was concealed. The prosecution has succeeded in proving that the accused 1 and 2 consciously possessed the contraband spirit while transporting from Karnataka to Kerala State as alleged by the prosecution. It is true that there was a delay of 19 months in submitting the final report before the trial Crl.R.P.No.1477 of 2009 ..13..
court. However, the final report was filed within the limitation period before the learned Magistrate and the delay factor is not a ground for setting aside the concurrent findings of the trial court for the offence under Section 55(a) of the Abkari Act.
17. It is well settled law that when concurrent findings of facts rendered by the trial court and appellate court are sought to be set aside in revision, the High Court does not, in the absence of perversity upset factual findings arrived at by the two courts below. It is not for the revisional court to re-analyse and reinterpret the evidence on record in a case where the trial court and appellate court have come to a probable conclusion. Hence the conviction against the accused 1 and 2 for the offence punishable under Section 55(a) of the Abkari Act is liable to be confirmed.
18. Coming to the question of sentence, the learned counsel for the revision petitioners submitted that the Crl.R.P.No.1477 of 2009 ..14..
revision petitioners have not so far implicated in any other case. It is a fact that the revision petitioners have been facing criminal trial of this case since 2000. They have undergone the agony of criminal proceedings. The trial court sentenced the accused to undergo rigorous imprisonment for two years each and also to pay a fine of Rs.1,00,000/- each, in default of payment of fine to undergo simple imprisonment for six months each. Considering all the above aspects, it is just and proper to reduce the sentence of imprisonment to one year each and also to pay a fine of Rs.1,00,000/- each and in default of payment of fine to undergo simple imprisonment for a period of six months each.
19. In the result, this criminal revision petition is allowed in part as hereunder:-
1) The revision petitioners/accused 1 and 2 are sentenced to undergo rigorous imprisonment for one year each and also to pay a fine of Rs.1,00,000/- each Crl.R.P.No.1477 of 2009 ..15..
and in default of payment of fine to undergo simple imprisonment for six months each for the offence punishable under Section 55(a) of the Abkari Act in modification of the sentence concurrently entered by the trial court and the appellate court.
2) The revision petitioners/accused 1 and 2 are directed to surrender before the trial court to serve the sentence on 09.12.2020 failing which the trial court shall take necessary steps to execute the sentence in accordance with law.
The Registry shall transmit the entire records to the trial court forthwith.
Sd/-
N.ANIL KUMAR, JUDGE skj