Kerala High Court
Sakavulla vs State Of Kerala on 18 October, 2006
Author: R. Basant
Bench: R.Basant
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 3580 of 2006()
1. SAKAVULLA, S/O. BUDDAN SAHEB,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.M.RAMESH CHANDER
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :18/10/2006
O R D E R
R. BASANT, J.
- - - - - - - - - - - - - - - - - - - -
Crl.R.P.No. 3580 of 2006
- - - - - - - - - - - - - - - - - - - -
Dated this the 18th day of October, 2006
O R D E R
This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 55
(a) of the Abkari Act.
2. The crux of the allegations against the petitioner is that the petitioner, as driver of the lorry in question, transported (in the course of the attempt to illegally import) 96 x 180 ml. of I.M.F.L. from Karnataka to Kerala at 1.30 a.m. on 24.6.1998. The vehicle which the petitioner was driving, in which the second accused was allegedly the cleaner and the third accused, the owner, was intercepted at the border check post in the Kerala - Karnataka boarder by the Excise officials including PW1, who effected the seizure of the contraband article under Ext.P3 seizure mahazar.
3. PW1 detected the offence. PW4 conducted the necessary enquiry/investigation and filed the charge sheet. Cognizance was Crl.R.P.No. 3580 of 2006 2 taken and consequent to the plea of not guilty raised by the accused, the prosecution examined PWs. 1 to 4 and proved Exts.P1 to P8. MOs. 1 to 3 series were also marked.
4. The accused took up a defence of total denial. No defence evidence was adduced. The courts below concurrently came to the conclusion that the prosecution has succeeded in proving the offence alleged against the petitioner beyond reasonable doubt. The trial court acquitted the third accused. The appellate court acquitted the second accused. Both of them accepted the prosecution version about the complicity of the petitioner. Accordingly they proceeded to pass the impugned concurrent judgments.
5. The learned counsel for the petitioner assails the impugned verdict of guilty and conviction on various grounds. The prosecution has examined PW1, the officer who detected the offence on a search of the lorry which reached the excise check post along with other officials including PW2. PW3 is an attester to Ext.P3 seizure mahazar. PW4, as stated earlier, is the official, who filed the charge sheet. Exts.P1 and P2 are the arrest memos Crl.R.P.No. 3580 of 2006 3 for the arrest of accused 1 and 2. Ext.P3 is the seizure mahazar. Ext.P7 is the forwarding note and Ext.P8 is the chemical examiner's report which confirms that the contraband article is liquor.
6. The learned counsel for the petitioner first of all contends that the oral evidence of PWs. 1 and 2, Excise officials, and PW3, the alleged signatory to Ext.P3 seizure mahazar, should not have been accepted and acted upon. PWs. 1 and 2 are officials of the excise department and in that view of the matter interested in the successful outcome of the prosecution, the offence having been detected by them. This interest which PWs. 1 and 2 have in the proper performance of their official duty cannot relegate them to the category of interested witnesses for whose testimony, as a rule of prudence, courts usually insists on ocular corroboration. It is part of the sublime public duty of every public official that he should detect offences and bring the offenders to book. Law expects the public officials to have such commitment to their duties as public officials. This interest which they have cannot persuade the court to approach their evidence with any doubt, suspicion or distrust. Care and caution certainly, but undeserved doubt and suspicion certainly not. If there is an allegation that public Crl.R.P.No. 3580 of 2006 4 officials were exploiting the power that they have to settle personal scores, certainly an approach with greater care and caution is necessary.
7. In this case, there is not a whisper of an allegation that PWs. 1 and 2 or any other excise official had any motive to falsely implicate the petitioner in such a serious crime. The version of PWs. 1 and 2 is eminently supported by the contemporaneous seizure mahazar Ext.P3 prepared by them. PW3, an alleged independent witness - of course a person having an establishment near the excise check post - had admitted that he was present at the time when the seizure was effected and Ext.P3 bears his signature. I am of the opinion that the oral evidence of PWs. 1 to 3 does not in these circumstances create any reasonable doubt or call for any approach with suspicion or distrust to their testimony.
8. The learned counsel contends that the detection was made in the course of a search conducted at the excise check post. He contends that the search is bad in law for the reason that no search memo was prepared. I do note that no search memo had been prepared. It will be crucial to note that the officials at the check post were not searching the vehicles on the basis of any prior information. They were inspecting the vehicles in pursuance of Crl.R.P.No. 3580 of 2006 5 their duties as persons manning the excise check post in a routine manner. It is in the course of such routine inspection that they came across the contraband article concealed below the seat of the driver. Provisions relating to search, undoubtedly, had to be complied with when a vehicle is searched also. But, as rightly found by the courts below, it is trite that any inadequacy or irregularity in the conduct of the search does not under the Indian law affect the outcome of such search. More so in a case like the instant one, where the officials were not searching the vehicle on the basis of any prior information and it was an accidental discovery of the concealed contraband articles in the course of a normal routine check up at the excise check post. I am unable to attach any crucial significance to the failure of the officials preparing a search memo. At any rate, it is not a satisfactory and sufficient reason to commit the indiscretion of throwing overboard the evidence of PWs. 1 to 3 about the search and recovery.
9. The counsel next contends that there is no evidence to show that the petitioner was the driver of the vehicle. I find no merit in this contention at all. A specific contention to this effect is not raised before the courts below. The contemporaneous records and the evidence of PWs. 1 Crl.R.P.No. 3580 of 2006 6 and 2 clearly show that the petitioner was the driver of the vehicle. The driver of the vehicle is responsible for the vehicle and it is he who takes the vehicle to the check post. The courts below have conceded the benefit of doubt to th cleaner of the vehicle, who was available in the vehicle as also the owner of the vehicle, who was not available in the vehicle. In any view of the matter, I do not find any merit in the contention that the petitioner was not the driver of the vehicle at the relevant time.
10. A contention is raised that in the office copy of the requisition for chemical examination, the impression of the specimen seal affixed on the sample bottle is not seen affixed. It may be an omission to affix the impression of the specimen seal in the office copy of the requisition. But Ext.P8 report of the chemical examiner shows undoubtedly that the impression of the seal was affixed in the original and the same tallied with the impression on the sample sent for examination. The innocuous omission to affix the impression of the sample seal in the copy cannot, in these circumstances, deliver any advantage to the petitioner.
11. The learned counsel then contends that there is incongruity in the description of the colour of the contraband article by PWs. 1 and 2 in Crl.R.P.No. 3580 of 2006 7 Ext.P3 and the colour noted by the expert when the sample reached him for examination. An expert being an expert is expected to be specific and accurate in the description of the colour. The same degree of precision cannot be expected from officials like PWs. 1 and 2. It would be unreasonable and puerile to read into that incongruency in the description of colour any significance and accept the prayer to throw overboard the evidence of recovery and seizure on that alleged incongruity.
12. No other contentions are raised on merits. I have been taken through the entire evidence available. I am satisfied that the impugned verdict of guilty and conviction do not warrant any interference. The challenge fails.
13. Coming to the question of sentence, the learned counsel submits that though there is statutory prescription of minimum mandatory sentence of fine, there is no minimum mandatory sentence of imprisonment and in these circumstances leniency may be shown on the question of sentence. The petitioner now faces a sentence of R.I. for a period of one year and a fine of Rs. 1 lakh and in default to undergo R.I. for a period of six months. Counsel prays that the substantive sentence of imprisonment and default Crl.R.P.No. 3580 of 2006 8 sentence may be realistically modified and reduced. I find merit in the said prayer. In the facts and circumstances of this case, I am satisfied that leniency can be shown on the question of sentence. The challenge can and does succeed only to the above extent.
14. In the result:
(a) This revision petition is allowed in part.
(b) The impugned verdict of guilty and conviction of the petitioner under section 55(a) of the Abkari Act are upheld.
) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo R.I. for a period of three months and to pay a fine of Rs. 1 lakh and in default to undergo R.I. for a further period of three months.
15. The petitioner is said to be undergoing the sentence imposed. The directions herein shall be communicated forthwith to the courts below and to the officials concerned.
Crl.R.P.No. 3580 of 2006 9
(R. BASANT) Judge tm