Kerala High Court
P.M.Bashir vs State Of Kerala on 7 September, 2012
Author: N.K.Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
FRIDAY, THE 7TH DAY OF SEPTEMBER 2012/16TH BHADRA 1934
CRL.A.No. 523 of 2005 ( )
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SC.583/2004 of ADDL.SESSION COURT (ADHOC-II) KASARAGODE
APPELLANT(S)/ACCUSED::
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1. P.M.BASHIR
23/02, S/O. PARAKKETU MUHAMMED, ARIYAPPADY (H)
MUTTATHODY VILLAGE, NOW AT PARAKKETTU
KUDLU VILLAGE.
2. DINESH KUMAR M.D.,
22/02, S/O. BABU PATALI, VATAKKEKKARA (H) MULLERIA
KARADUKA VILLAGE.
BY ADV. SRI.T.B.SHAJIMON
RESPONDENT(S)/COMPLAINANT::
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STATE OF KERALA
REP. BY THE S.H.O., BADIADKA POLICE STATION
WHO IS REPRESENTED BEFORE THIS HON'BLE COURT BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA
ERNAKULAM.
BY ADV. PUBLIC PROSECUTOR SRI.ROY THOMAS
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-09-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JJJ
N.K. BALAKRISHNAN, J.
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Crl. A. No: 523 of 2005
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Dated this the 7th day of September, 2012
J U D G M E N T
This appeal is directed against the conviction and sentence passed against the appellants by the Additional Sessions Judge (Ad hoc) II, Kasaragod, for the offence punishable under section 55 (a) of Abkari Act. They were sentenced to undergo rigorous imprisonment for two years and to pay Rs.1,00,000/- as fine and in default to undergo rigorous imprisonment for three months.
2. The case unfolded by the prosecution and accepted by the court below is that the appellants were found transporting 10,000 packets of arrack of 100 ml each in a Tata Sumo having registration no: KA-21-M-7153 at a place called Swarga. PWs 1 to 6 were examined and Exts.P1 to P10 were marked. M.O.1 series - arrack packets were also identified and marked.
Crl.A. No: 523/2005 -2-
3. The evidence given by PW2, the Sub Inspector of Police who detected the case and the contemporaneous records prepared for the seizure of the articles were relied upon by the court below to find the appellants guilty.
4. The learned counsel for the appellants would submit that there is no legal evidence to show that the appellants had transported the arrack packets as alleged by the prosecution. It is contended that there is contradiction in the evidence regarding place of detection and there is delay in the production of the contraband articles before court. All these aspects were not seriously considered by the court below and as such, the learned counsel submits that, the conviction of the appellants is to be set aside.
5. The evidence would show that PW2 and his police party were on patrol duty on 27.08.2002. They reached Perla check post at 4.30 p.m. While they were inspecting Crl.A. No: 523/2005 -3- the vehicles, a Tata Sumo bearing registration no: KA-21-M- 7153 was coming towards the check post from Karnataka side. When they saw the police party, they tried to return through Swarga road. They, in fact, entered Swarga road through the check post gate which was lying open. Hence, the police party chased the Tata Sumo, overtook the vehicle and kept the police vehicle in front of the Tata Sumo. Thus, the Tata Sumo was intercepted. The 1st appellant was the person who was driving the Tata Sumo. The 2nd appellant was sitting just beside A1. When the Tata Sumo was examined there were 20 plastic sacks, each sack containing packets of arrack. The total number of packets were found to be 10,000 and each packet contained 100 ml of arrack.
6. Exhibits P2 and P2(a) are the arrest memos prepared for the arrest of A1 and A2. The Tata Sumo and the liquor packets were seized. Two samples were taken in Crl.A. No: 523/2005 -4- two bottles of 375 ml each for which eight packets were opened. Two sample bottles were affixed with the labels. There is a detailed description of arrest of the accused and seizure of the contraband articles and Tata Sumo vehicle in the mahazar prepared. Ext. P4 is the specimen impression of the seal used to seal the articles. It is stated that they reached the police station at about 8.00 p.m. and from there Ext.P5 - F.I.R. was registered. PW2 identified the packets as M.O. Series.
7. Though there was an incisive cross examination of PW2 touching on all points, the credibility of PW2 could not be shattered. The defence contended that the police jeep had not gone to the place of arrest on that day at the particular time and for that purpose the General Diary was requested to be produced, but the trial court disallowed the same. The evidence that PW2 and other officials had been Crl.A. No: 523/2005 -5- on patrol duty and that the Tata Sumo vehicle was intercepted and 10,000 packets of arrack were seized from that vehicle, would leave no doubt as to the credibility of the case projected by the prosecution. The further fact that Exts P2 and P2(a), the arrest memos and also Ext.P3 - the seizure mahazar were prepared then and there, would also lend assurance to the truthfulness of the prosecution case.
8. It is contended by the defence that there was no identifying mark on the ten sacks in which the arrack packets were alleged to have been seen by PW2. But the fact that there were 10,000 such liquor packets of 100 ml each and that those packets were seen kept in twenty sacks inside the Tata Sumo, as spoken to by PW2, was rightly accepted by the trial court. The contention that there was delay in production of the articles was seriously assailed by the prosecution.
Crl.A. No: 523/2005 -6-
9. There was no case for the accused that Ext.P2 was not signed by A1. Ext. P2(a) was signed by A2. Those aspects were not seriously challenged. It is also important to note that Ext. P5 -F.I.R., Ext. P3- seizure mahazar and other records were produced before court when the accused were produced before the learned Magistrate along with the remand report. Ext.P6 is the property list which would show that the properties were produced before the learned Magistrate on 31.08.2002.
10. It is vehemently argued by the learned counsel for the appellants that there was unreasonable delay in the production of properties before court. That contention also cannot be sustained in the peculiar circumstances of the case and also in the light of the evidence given by PW2. This is a case where there were 10,000 packets. The police officer and the accused reached the police station only at Crl.A. No: 523/2005 -7- about 8.00 p.m. It was thereafter the F.I.R. and property list were prepared. It is seen that the property list was prepared on 27.8.2002 itself. It is submitted by the learned prosecutor that since the quantity of arrack packets were 10,000 in number, it cannot be immediately taken to the court since, first of all it has to be ascertained whether those properties could be received and kept in the property room of the Court. PW2 has stated that the properties were in his custody and were produced on 31.8.2002. So, considering the huge quantity of arrack packets seized in this case, the contention that there was delay in the production of articles before court cannot come to the rescue of the accused. Not only that it cannot be said that the properties were created for the purpose of foisting a case.
11. Item no.2 in Ext.P6 is the sample bottle of 375 ml. It was stated that it was taken from eight packets Crl.A. No: 523/2005 -8- mentioned earlier. Those bottles were in a sealed and labelled condition. That was also not seriously assailed. Ext. P7 is the copy of the forwarding note which contains the specimen impression of the seal. Ext. P9 is the report of the chemical examiner which shows that the samples contained 36.09% by volume of ethyl alcohol.
12. It was contended by the defence that the R.C. owner of the vehicle was not arrayed as accused or was cited as witness. There is evidence on record to show that the Investigating Officer had addressed the R.T.O. Puthur to furnish the details of the vehicle mentioned earlier. Though, the vehicle showed the engine number and chassis number as mentioned in Ext. P10, the reply to Ext. P10 is seen endorsed on Ext.P10 itself which shows that there was no vehicle having registration no. KA-21-M-7153. Therefore, it was contended that fake registration number was shown on the vehicle.
Crl.A. No: 523/2005 -9-
13. PW4 is the officer who conducted the later part of the investigation. It was he who laid the charge sheet. It was stated that it was because of the information furnished by the R.T.O., as evidenced by Ext.P10, the R.C. owner of the vehicle could not be traced out to be arrayed as accused or as a witness. PWs 5 and 6, the independent witnesses, though stated that they did not see the police officer seizing the vehicle and the contraband, they admitted their signatures in the contemporaneous record prepared by PW2. Since, those documents reached the court immediately on the next day, the truthfulness of the same cannot be challenged at all.
14. It is a case where the accused persons were found transporting 10,000 packets of arrack each packet containing 100 ml each. The total quantity comes to 1,000 litres. Both of them were found inside the car. There was Crl.A. No: 523/2005 -10- also an attempt to flee from the scene and only because the police chased the vehicle, it could be intercepted. In the peculiar circumstances of the case and the way they were found transporting the liquor packets, there can be no doubt that they were jointly in possession of 10,000 packets of arrack. Therefore, the court below has rightly found the appellants guilty of the offence punishable under section 55 (a) of Abkari Act.
15. The learned counsel for the appellants submits that leniency may be shown in the matter of sentence. The learned Public Prosecutor has opposed the request stating that a total quantity of 1000 litres of arrack was illegally transported.
16. Considering all the aspects, this appeal is disposed of as stated below:-
Crl.A. No: 523/2005 -11- The conviction of the appellants for the offence punishable under section 55(a) of Abkari Act is confirmed. While confirming the fine imposed and the default sentence awarded by the court below, the substantive sentence is reduced to rigorous imprisonment for twenty months.
The court below will execute the sentence immediately on receipt of a copy of this judgment.
Sd/-
N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj