Kerala High Court
Malathi vs State Of Kerala on 19 December, 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
WEDNESDAY, THE 19TH DAY OF DECEMBER 2012/28TH AGRAHAYANA 1934
CRL.A.No. 95 of 2006 ( )
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SC.116/2003 of ADDL. SESSIONS JUDGE (ADHOC) FAST TRACK COURT-III,
PATHANAMTHITTA
CP.8/2002 of J.M.F.C., ADOOR
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APPELLANT(S)/ACCUSED::
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MALATHI, W/O. MADHU,
AGED 45 YEARS, MANOJ BHAVANAM, KURAMPALA THEKKU
KURAMPALA VILLAGE, ADOOR TALUK, PATHANAMTHITTA.
BY ADV. SRI.S.MUHAMMED HANEEF
RESPONDENT(S)/COMPLAINANT::
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STATE OF KERALA, REP. BY EXCISE
INSPECTOR, EXCISE RANGE OFFICE
ADOOR (CRIME NO.43/199) REP. BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
PUBLIC PROSECUTOR SRI.ROY THOMAS
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
19-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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N.K.BALAKRISHNAN, J.
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Crl.A. No.95 of 2006
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Dated this the 19th day of December 2012
J U D G M E N T
The appellant was convicted by the learned Addl. Sessions Judge (Adhoc) Fast Track Court-III, Pathanamthitta for offence punishable under Sec.8(1) r/w 8(2) of Abkari Act and was sentenced to S.I. for one year and to pay Rs.1 lakh as fine and in default to S.I. for three months.
2. PW1, the Preventive Officer of the Adoor Excise Range and other officials were on patrol duty on 23.6.1999. At about 8.30 AM when they reached a lane adjoining the southern boundary of New India Bible Church, the accused was found carrying a plastic can of a capacity of 5 litres. She was intercepted. The can was examined. It contained about 3 litres of illicit arrack. It was confirmed by smell and taste. 180ml was taken from out of it as sample. The sample was sealed. The can containing the residue was also sealed. Labels containing the signatures of the accused and of the witnesses were affixed on the plastic can and on the sample bottle. The properties were Crl.A. No.95 of 2006 -: 2 :- seized as per Ext.P2 mahazar. The accused was arrested then and there as evidenced by Ext.P1. The arrest memo was signed by the accused and the witnesses. Occurrence report (Ext.P3) was prepared and registered by PW2. After completing the investigation, the final report was filed. The accused pleaded not guilty.
3. PW1 to PW5 were examined and Exts.P1 to P8 were marked. The courts below accepted the evidence given by PW1 and the contemporaneous records to show that the contraband item was seized from the possession of the accused. Though the property clerk/thondy clerk of J.F.C.M., Adoor was examined as DW1 to contend that the property mentioned in this case was in fact produced before the court on 22.6.1999, that contention was not accepted by the learned Addl. Sessions Judge. Accepting the case of the prosecution, the appellant was found guilty, convicted and sentenced as mentioned above.
4. Learned counsel for the appellant submits that the independent witnesses did not support the prosecution. There is only the solitary testimony of PW1, the Preventive Officer regarding the detection of the offence. That evidence should not Crl.A. No.95 of 2006 -: 3 :- have been accepted by the learned trial Judge, the learned counsel submits. It is also submitted that the evidence given by DW1 and Ext.D1, the extract of property register should not have been discarded by the trial court.
5. The evidence given by PW1 would show that on 23.6.1999 he was the Preventive Officer, Adoor Excise Range and on that day he along with the excise officials were on patrol duty and when they reached near a lane adjoining to the southern boundary of New India Bible Church, the accused was found carrying a plastic can of a capacity of 5 litres. The evidence would show that the accused was intercepted. The can was examined and then it was found to contain 3 litres of liquid which by smell and taste was identified as arrack. The evidence would show that 180ml was taken out of the can as sample and that was sealed then and there. There is also evidence to show that the labels containing the signatures of the accused and of the independent witnesses, PW3 and PW4 were affixed on MO1 can and the sample bottle. When PW1 was examined before court, the label affixed on MO1 was not there as it was affixed. But PW1 has stated that part of that label was still visible. It was Crl.A. No.95 of 2006 -: 4 :- found that the witnesses, who had signed that label are the witnesses to Ext.P2 mahazar. Therefore, the contention that MO1 was not sealed cannot be accepted. There is evidence to show that MO1 can and the sample bottle were sealed then and there. It is important to note that the accused was arrested then and there as evidenced by Ext.P1. Though PW3 and PW4 did not support the prosecution, that is not a reason to reject the evidence given by PW1. The independent witnesses do turn hostile to the prosecution for variety of reasons.
6. The crucial question for consideration is whether the evidence given by PW1 instills confidence in the mind of the court. Ext.P1 arrest memo, Ext.P2 seizure mahazar and Ext.P3 occurrence report, prepared by PW2, reached the court on 23.6.1999 itself. Ext.P5, the property list also reached the court on 23.6.1999 as can be seen from the date put on the court seal affixed on Ext.P5. Further, there is an endorsement made by the learned Magistrate which also would indicate that the property was received on 23.6.1999 itself. The property was entered in the property register as T.R.212/1999. That property list was actually signed by the Assistant Excise Inspector on 23.6.1999. Crl.A. No.95 of 2006 -: 5 :- In spite of the endorsement made by the Assistant Excise Inspector and the endorsement made by the office of the learned Magistrate putting the date 23.6.1999 at the relevant place of the court seal affixed on Ext.P5 and the date put by the learned Magistrate, DW1, the thondy clerk of J.F.C.M., Adoor has deposed before court that the property was entered in the property register on 22.6.1999 a day prior to its production before court. Ext.P1 is the relevant portion of the thondy register. It is quite evident that the said clerk who prepared the thondy register did not put the date 23.6.1999 after the closure of the entries dated 22.6.1999 in that Thondy Register. It is also pertinent to note that despite the endorsement made by the learned Magistrate and also by the chief ministerial officer of the court who must have put the date 23.6.1999, the thondy clerk did not even bother to verify the date and simply put the date 22.6.1999. It is further curious to note as to how the defence counsel could come to know that in the thondy register, the date of receipt of the thondy articles was shown as 22.6.1999 unless he was told by the thondy clerk. In Ext.P1 and other records, the date was shown as 23.6.1999, the date of detection of the Crl.A. No.95 of 2006 -: 6 :- offence. In Ext.P2 seizure mahazar, Ext.P1 arrest memo, Ext.P3 occurrence report, Ext.P5, property list and in Ext.P4, the remand report the date was shown as 23.6.1999. The date was put by the learned Magistrate also. Then how could it be contended that the properties were received in court on 22.6.1999. The learned trial Judge, therefore, did not accept the case put forward by the defence that the arrest of the accused and seizure of the contraband articles as spoken to by PW1 is unreliable. The remand report would show that the accused was produced before the learned Magistrate at 1.30 PM. The detection was in the morning; at 8.30 AM. Exts.P1 to P5 were produced before the learned Magistrate when the accused was produced at 1.30 PM on 23.6.1999. Since these properties were produced on the same day, it has to be said that the properties were produced immediately after the detection.
7. When the sample was sent for chemical examination it was found to contain 26.02% by volume of ethyl alcohol. As such, it can be found that the liquor possessed by the accused was illicit liquor which would come within the definition of arrack and as such, the offence would fall under Sec.8(1) which Crl.A. No.95 of 2006 -: 7 :- is punishable under Sec.8(2) of the Abkari Act. The court below has analysed the evidence in the correct perspective. I find no reason to hold otherwise. Hence, the conviction is confirmed.
8. Learned counsel for the appellant submits that the appellant is a lady aged about 62 years and that there was no other case against her. It is also stated that the appellant is a poor woman and so, leniency may be shown in the matter of sentence. Considering all the aspects, I find that the sentence is to be modified to a certain extent.
9. In the light of what has been stated above, this Crl.A. is disposed of as stated below :-
The conviction is confirmed.
In supersession of the sentence awarded by the court below, the appellant is sentenced to S.I. for one month and to pay Rs.1 lakh as fine and in default of payment of the fine, the appellant will undergo S.I. for one month.
10. (See paragraph 6 of this judgment). It is seen that the property clerk made a wrong entry in the property register as mentioned above; whether deliberately or otherwise. He put a wrong date as 22.6.1999 when all the officials and even the Crl.A. No.95 of 2006 -: 8 :- learned Magistrate put the date as 23.6.1999. In fact the accused and the records were produced before the learned Magistrate at 1.30 PM on 23.6.1999. How the factum of an incorrect entry in the property register could be brought to the notice of the accused and his counsel, also is a matter of serious concern. The fact that an entry showing a wrong date was made in the thondy register cannot be viewed lightly. As such, a copy of this order shall be forwarded to the Registrar (Subordinate Judiciary) so as to get explanation from the concerned clerk through proper channel to consider whether action is to be taken.
N.K.BALAKRISHNAN, JUDGE.
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