Kerala High Court
Sudarsanan vs State Of Kerala on 7 July, 2020
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 07TH DAY OF JULY 2020 / 16TH ASHADHA, 1942
CRL.A.No.753 OF 2005
AGAINST THE JUDGMENT IN S.C.NO.983/2000 DATED 30-03-2005 OF
ADDITIONAL DISTRICT & SESSIONS COURT, FAST TRACK NO.II,
THIRUVANANTHAPURAM
APPELLANT/4TH ACCUSED:
SUDARSANAN
AGED 44 YEARS
S/O. KRISHNAN, VILAYIL VEEDU,
CHATTATHINKARA DESOM, ATTINGAL VILLAGE.
BY ADV. SRI.S.RAJEEV
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
(CRIME NO.111/89, OF EXCISE RANGE, CHARAYENKIAL).
R1 BY PUBLIC PROSECUTOR SRI.B.JAYASURYA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07.07.2020,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.A.No.753/05 2
JUDGMENT
Dated this the 7th day of July 2020 The above appeal is filed by the fourth accused in Sessions Case No.983 of 2000 on the file of the Additional District and Sessions Judge, Fast Track No.II, Thiruvananthapuram. The above case is charge sheeted the Excise Inspector, Chirayinkeezhu against the appellant and three others alleging offences punishable under Sections 57A (1) (iii) of the Abkari Act.
2. The prosecution case is that on 2.3.1989, at 6.40 P.M. PW4, the Excise Inspector Excise Mobile Testing Laboratory, South Zone, Thiruvananthapuram along with his party inspected and collected samples from the godown of the arrack shop Nos.5, 6 and 7 of the Chirayinkeezh Excise Range at Pandakasala (Godown No.2/88-89, Chirayinkeezh Range) in the presence of the fourth accused, who was the Manager and the person in control of the said godown. On inspection of the stock register in the presence of the fourth accused and witnesses, it was found that 1250 litres of arrack was stored in 13 plastic containers, which were numbered serially. Crl.A.No.753/05 3 But on verification, altogether 1735 litres of arrack was found stored in the said containers. When the difference in the quantity enquired, it was explained that the arrack shops in the third group of arrack shops in the Chirayinkeezh Range was also run by them and since the godown licence for the said group of arrack shops was cancelled, the arrack for the said shop was also stored there. The Junior Scientific Officer present with the party collected samples from each container and on examination of the said samples at the spot, methyl alcohol was detected in them. So, samples were collected in three bottles, each having a volume of 180 ml. from each containers (3x13=39) and the same were sealed in the presence of the fourth accused and the witnesses. One sample from each container (1x13=13) was entrusted with the fourth accused for keeping in his custody and got it acknowledged by him in Exhibit P1 mahazar. The remaining bottles of samples (13x2=26) were taken into custody. The arrack found in the 13 containers were also taken into custody and entrusted with the Preventive Officer, Soman, who was present with the party for handing over to the Excise Inspector, Chirayinkeezh after describing the same in Exhibit P1 mahazar. A copy of the mahazar was also given to the fourth accused and the same was Crl.A.No.753/05 4 acknowledged by him in Exhibit P1 mahazar.
3. The 13 bottles of samples taken as per Exhibit P1 mahazar was sent for Chemical Examiner's Laboratory for examination. As per Exhibit P3 report of the Joint Chemical Examiner to the Government of Kerala, methyl alcohol was detected in all the 13 samples. The percentage by volume of methyl alcohol found in the samples shown in Exhibit P3 report ranges from 0.31 to 0.48. In Exhibit P3 report, the Joint Chemical Examiner has made it clear that methyl alcohol is a noxious material injurious to health and hence the samples 1 to 13 are unfit for human consumption. Hence the prosecution was lodged against the appellant and others.
4. The trial court framed a charge under Section 57A of the Abkari Act. The accused pleaded not guilty. Hence the prosecution examined PW1 to PW5 and marked Exhibits P1 to P7. The Assistant Excise Commissioner was examined as CW1. Exhibits C1 and C2 were also marked. After the closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. The accused adduced evidence. The fourth accused was examined as DW1 and Exhibits D1 and D2 were marked on his side. Pending trial, the second accused died and his case was abated.
Crl.A.No.753/05 5
5. After going through the evidence and the documents, the trial court found that the first accused is not guilty of the offence. The third and fourth accused were found guilty under Section 57A (1)(iii) of the Abkari Act.
6. Aggrieved by the conviction and sentence, the third accused filed Crl.Appeal No.742 of 2005 and the fourth accused filed the present Crl.Appeal No.753 of 2005. The appeal filed by the third accused was dismissed after modifying the sentence as per judgment dated 19.12.2012.
7. Heard the learned counsel for the appellant and the learned Public Prosecutor.
8. The learned counsel for the appellant submitted that no documents are produced by the prosecution to prove that the third accused was the Manager of the godown. The counsel submitted that, he even denied his signature in the seizure mahazar. There is absolutely no evidence to connect the fourth accused in this case except the oral evidence of official witnesses. The counsel submitted that there is no corroboration to the oral evidence of official witnesses. Therefore, the counsel submitted that the fourth accused, who is the appellant herein, is entitled the benefit of doubt. Crl.A.No.753/05 6
9. The learned Public Prosecutor submitted that the fourth accused was present at the time of search and seizure of the contraband article. The learned Public Prosecutor also submitted that the contemporaneous records would show the presence of the fourth accused at the time of search and seizure. It is also submitted that the signature of the fourth accused is there in Exhibit P1 mahazar. Therefore, there is nothing to interfere with the conviction and sentence imposed by the trial court.
10. The prosecution alleges that the fourth accused is the Manager of the godown from where the Junior Scientific Officer attached to the Excise Mobile Testing Laboratory headed by PW4 had collected samples which on chemical analysis found with methyl alcohol. According to the prosecution, the fourth accused was present at the time of collecting samples. There is oral evidence of PW4 and PW5 about the presence of the fourth accused at the time of the search and seizure of samples. PW4 also deposed that the fourth accused received a copy of the mahazar and samples by acknowledging the same in Exhibit P1 mahazar. The fourth accused was examined as DW1. He denied his signature in Exhibit P1. According to DW1, he is not Sundaresan, S/o.Krishnan, Vilayil Crl.A.No.753/05 7 House, Attingal Village who signed in Exhibit P1 and his name and address is Sundaresan, S/o.Kunjukrishnan, Charuvila Veedu, Thottuvaram, Attingal Village. DW1 produced Ext.D1 passport and D2 identity card issued from the Service Co-operative Bank, Attingal. The trial court, after considering the evidence of DW1 and Exhibits D1 and D2, concluded like this :
"25......But Ext.D1 passport was issued on 17.3.1989 whereas the date of occurrence in the case was on 2.3.1989. So also the Exhibit D2 identity card was issued on 28.5.1997. So it is evident and clear that both Ext.D1 passport and D2 identity card were issued to the fourth accused subsequent to the date occurrence in the case. So after the closing of defence evidence the fourth accused produced the passport (K.640582) dated 6.12.1975 for evidencing that his name and address was Sundaresan, S/o.Kunju Krishnan, Charuvila, Thottavaram, Attingal Village. But the said passport was valid only up to 5.12.1985. So legally speaking the said passport also will not help the defence to establish that on the date of occurrence, i.e., 2.3.1989 the fourth accused was residing in the said address. Whatever it be the only differences noted in the address of the fourth accused given in Exhibit P1 mahazar and Exhibits D1 and D2 are that in the former (Exhibit P1) the word "Kunju" in the name of the father of A4 and "Charu" in his house name are missing. If the above said words "Kunju"
and "Charu" were added to the address of A4 given in Exhibit P1, his address in Exhibit P1, D1 and D2 would have been one and the same.
26. In this context, the evidence of PW4 and PW5 Crl.A.No.753/05 8 requires consideration. According to them, at the time of collection of samples A4 was present in the godown and when enquired about the difference found in the actual stock of arrack and the stock shown in the register, he (A4) explained that it so happened because the stock kept in the godown of the shops in the 3rd group of Chirayinkeezh Range was also kept in the said godown since the licence granted to the godown of the shops in the 3rd group was cancelled. In the cross-examination PW4 has made it further clear that it was A4 Sundaresan, S/o.Krishnan who told him that he was the Manager of the said godown. The witness added further that it was in his presence that A4 had signed in Ext.P1 mahazar and acknowledged the receipt of the copy of the same and the samples. So PW4 has categorically identified A4 who was present in the court at the time of examination as the person who was present at the time of the collection of samples from the godown who introduced himself as Sundaresan, S/o.Krishnan, Vilayil House, Attingal and the Manager of the godown and acknowledged the receipt of the copy of the mahazar and samples. PW5, the Preventive Officer, who was present along with PW4 has also identified A4 as the person who signed in Ext.P1 mahazar. So even if there is some differences in the name, address and signature of A4 found in Ext.P1 mahazar and the same found on Exts.D1 and D2, the plea of "mistaken identity" raised by the defence will not entitled him to get benefit of doubt in view of his identification by PW4 and PW5 before the court. The question is not where the name, address and signature of A4 found in Ext.P1 is correct or not ; but the question is whether it is A4 who had signed it. PW4 and PW5 has made it clear in unequivocal terms that it was A4 who was present in the court at the time of their examination who had signed in Ext.P1. In this Crl.A.No.753/05 9 connection it is to be remembered that name, address and signature of a person is not the sole test for identifying the said person, but only one of the means to identify him. In the case on hand, as pointed out by the learned Public Prosecutor, the fourth accused who is well aware of the penal consequences of mixing noxious substances with the arrack might have wrongly disclosed his identity to PW4 and others so as to escape from the clutches of law. But in my opinion, the plea of "mistaken identity" raised in the memorandum of argument submitted by the counsel for the accused will not legally sustain in view of the identification made by PW4 and PW5 in whose presence A4 had subscribed his signature in Ext.P1 mahazar. In this connection, it is pertinent to note that even the accused have no case that either PW4 or PW5 had any ill will or animosity towards them so as to falsely implicate them in the case.
27. At this juncture, it is pertinent to note that even though the name and address of A4 in Ext.D1 passport and D2 identity card is Sundaresan, S/o.Kunjukrishnan, Charuvila House, Thottavaram, Attingal, his name and address in the bail bond executed by him before the Judicial First Class Magistrate Court, Attingal on 19.1.2000 is Sundaresan, S/o.Krishnan, Vilayil House, Chattathinkara, Attingal. It is the very same address (Sundaresan, S/o.Krishnan, Vilayil House, Chattathinkara, Attingal), which is given in the Vakalaths executed by him (A4) and produced before Judicial First Class Magistrate Court, Attingal also. In the bail bond executed by A4 before the Asst. Sessions Court, Attingal also his name and address is given as Sundaresan, S/o.Krishnan, Vilayil House, Chittattinkara, Attingal. The above facts were confronted to fourth accused (DW1) at the time of his cross examination. But the learned defence counsel made an Crl.A.No.753/05 10 attempt by putting leading questions in the re-examination to DW1, to establish that it is since summons was served in that address that he happened to execute bonds and vakalaths in the said address. Even if it is so he could have raised the plea of mistaken identity at the time of taking bail or at least at the time of framing charges. But he has not done so. So the explanation given by A4 for executing bail bonds and vakalaths his name given in Ext.P1 mahazar and the charge sheet cannot be swallowed without a pinch of salt. As observed by me earlier, except the word "Kunju" before Krishnan and "Charu" before Vilayil are absent, in all other aspects the name and address of A4 found in Ext.P1 and D1 and D2 are one and the same. The possibility of, as pointed out by the learned prosecutor, A4 giving incorrect address to PW4 by avoiding the words "Kunju" and "Charu" from his address also cannot be ruled out. So in view of the identification made by PW4 and PW5 and the attending facts and circumstances in the case, I have no doubt in holding that it was A4 who had signed in Ext.P1 mahazar and received its copy and the samples in his capacity as Manager of the godown as stated in the prosecution case. If so no further elaboration is necessary to hold that A4 is also liable and responsible for mixing methyl alcohol in the arrack stored in the godown of shop No.5, 6 and 7 (Group No.II), Chirayinkeezh Excise Range at Pandakasala and therefore committed punishable offences under Sections 57A(1) and (3) of the Abkari Act."
11. I see no reason to defer from the finding of fact by the trial court. As observed by the lower court, there is evidence of PW4 and PW5. PW4, in his cross examination made it clear that it was A4, Crl.A.No.753/05 11 Sundaresan, S/o.Krishnan told him that he was Manager of the said godown. The witness added that it was in his presence that A4 had signed in Exhibit P1 mahazar and acknowledged the receipt of the copy of the same and the samples. So, PW4 has categorically identified A4 as the person who was present in the court at the time of the collection of samples from the godown who introduced himself as Sundaresan, S/o.Krishnan, Vilayil House, Attingal, and the Manager of the godown and acknowledged the receipt of the copy of the mahazar and samples.
12. As I said earlier, PW5, the Preventive Officer, corroborated the evidence of PW4. So, as correctly found by the trial court even if there is some difference in the name and address and signature of A4 found in Exhibit P1 mahazar and the same found in Exhibits D1 and D2, the plea of 'mistaken identity' raised by the defence will not stand in the light of the fact that PW4 and PW5 identified the same.
13. As observed by the trial court, the name, address and signature of a person is not the sole test for identifying the said person, but only one of the means to identify him. The fourth accused may be misleading the officials by giving the wrong name and Crl.A.No.753/05 12 address. In such circumstances, when there is oral evidence of PW4 and PW5 and no enmity or false implication is alleged by the accused, I think their oral evidence can be accepted.
14. Moreover, in this case, the prosecution is able to prove that samples were taken from the shop in which the appellant was the Manager and the same was forwarded to the Chemical Examiner. Exhibit P3 is the Chemical Examiner's report, which shows that sample contained methyl alcohol. Therefore, the offence under Section 57A(1) (iii) of the Abkari Act is made out.
15. The next question is regarding the sentence. As per the judgment dated 19.12.2012 in Crl.Appeal No.742 of 2005, this Court reduced the sentence of the third accused to one year and to pay a fine of Rupees Fifteen Thousand. The third accused is the licensee. The appellant is only the Manager of the shop. The minimum sentence prescribed as per Section 57A(1) (iii) is one year. The alleged sampling was on 2.3.1989. Now 21 years elapsed. In the facts and circumstances of the case, I think the sentence imposed to the appellant/fourth accused also can be reduced to one year and to pay a fine of Rs.15,000/- as imposed to the other accused as per the judgment dated 19.12.2012 in Crl.Appeal No.742 of 2005. Crl.A.No.753/05 13
Hence this Crl.Appeal is allowed in part as follows :
(i) The conviction imposed on the appellant as per the impugned judgment is confirmed.
(ii) The sentence imposed on the appellant/fourth accused, as per the impugned judgment, is set aside and the appellant/fourth accused is directed to undergo simple imprisonment for one year and to pay a fine of Rs.15,000/-. In default of payment of fine, the appellant/fourth accused is directed to undergo simple imprisonment for one year.
(iii) Set off, if any, under Section 428 Cr.P.C. is allowed.
Sd/-
P.V.KUNHIKRISHNAN JUDGE csl