Kerala High Court
Ramachandran vs State on 29 October, 2013
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
TUESDAY, THE 29TH DAY OF OCTOBER 2013/7TH KARTHIKA, 1935
CRL.A.No. 742 of 2012
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AGAINST THE ORDER IN SC NO.432/2008 OF ADDL.DISTRICT AND
SESSIONS COURT (ADHOC I), KASARAGOD
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APPELLANT(S):
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RAMACHANDRAN,
S/O.C.KANNAN,
C.NO.118, CENTRAL PRISON,
KANNUR.
BY ADV. SRI. SYAM J. SAM [STATE BRIEF]
RESPONDENT(S):
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STATE,REPRESENTED BY
THE EXCISE INSPECTOR,
BANDADKA EXCISE RANGE.
BY PUBLIC PROSECUTOR SMT. P.MAYA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 29-10-2013, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Kss
P.BHAVADASAN, J.
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Crl. Appeal No.742 OF 2012
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Dated this the 29th day of October, 2013.
J U D G M E N T
Two persons were prosecuted for the offence punishable under Section 8(2) of the Abkari Act. Among them, the 1st accused was found guilty and he was convicted and sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.1,00,000/- with default clause of rigorous imprisonment for one year.
2. On 18.12.2007 while PWs 3 and 4 were on routine patrol duty, they happened to see two persons, one of them carrying a larger can and the other a smaller can. The accused were found pouring liquid from a big can to a small can. PWs 3 and 4 stopped the vehicle at a short distance and walked to the place where the accused were standing. Seeing them, it is alleged that the 2nd accused ran away from the place and the 1st accused was caught red handed.
Crl. Appeal No.742/2012 2
3. PW3 would say that he had prepared the arrest memo Ext.P2 and other relevant documents. He speaks about having taken samples from the can. He also speaks about labeling the sample and also preparing Ext.P1 mahazar. He says that Ext.P5 is the specimen seal affixed on the sample bottle and he had handed over the articles to the investigating officer to produce them before the court.
4. Investigation was done by PW5. He says about having registered a crime as C.R.No.24/2007 as per Ext.P6 crime and occurrence report. He sent the samples to the court for forwarding them for chemical examination. He obtained Ext.P10 chemical analysis report. He completed the investigation and laid final report. Cognizance of the offence was taken as C.P.No.148/2008. The case was committed to Sessions Court, Kasaragod and it was made over to Additional District and Sessions Court (Adhoc-I), Kasaragod for trial and disposal. The latter court framed charge for the offence under Section 8(2) of the Abkari Act though the occurrence report shows the charge as Section 55(a) of Abkari Act. The court below has noticed that Crl. Appeal No.742/2012 3 the commodity involved is arrack and the proper provision attracted is Section 8(2) of Abkari Act.
5. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore had PWs 1 to 5 examined and Exts.P1 to P11(b) marked.
6. After the close of the prosecution evidence, the accused were questioned under Section 313 Cr.P.C. They denied all the incriminating circumstances brought out in evidence against them and stated that they have been falsely implicated.
7. On finding that the accused could not be acquitted under Section 232 Cr.P.C, they were asked to enter on their defence. They chose to adduce no evidence.
8. Relying on the evidence of PWs 3, 4, and 5, the court below came to the conclusion that the offence has been established as against the 1st accused and therefore, convicted and sentenced him as already mentioned. The 2nd accused was acquitted. The conviction and sentence passed against the 1st accused are assailed in this appeal.
9. Adv.Sri.Syam J. Sam appointed as State Brief contended Crl. Appeal No.742/2012 4 that the detection is not proper so also the evidence did not disclose that the appellant was present at the spot. It was also pointed out that the independent witnesses have turned hostile to the prosecution and therefore it is unsafe to place reliance on the evidence of PWs 3, 4 and 5 to hold the accused guilty. According to the learned counsel, sampling was not done properly. It is contended that the above aspects were not considered by the court below in their right perspective and a wrong conviction was passed.
10. Learned Public Prosecutor, on the other hand, contended that PWs 3 and 4 are spoken about the incident and PW3 is the detecting officer and PW4 was along with him. PW3 has spoken about the sampling and the various steps taken by him as required under law. PW5, the investigating officer, has spoken about the registration of crime and forwarding of samples to the court for sending them for chemical analysis. There is no procedural irregularity pointed out in the acts done by PW3 and therefore, no infirmity can be attached to his evidence. There is no reason to disbelieve, according to the learned Public Crl. Appeal No.742/2012 5 Prosecutor, the evidence of PWs 3 and 4 and there is no inconsistency or contradiction brought out in their evidence. It is pointed out that even though PWs 1 and 2 turned hostile to the prosecution, they admitted their signatures in Ext.P1 mahazar and that would show that they were present at the spot. It is pointed out that all the above facts led the court below to come to the conclusion that the offence as against the 1st accused is proved. It cannot be said that the findings are not supported by evidence and according to the learned Public Prosecutor, no grounds are made out to interfere with the same.
11. The evidence of PWs 3 and 4, who are the detecting officer and the preventive officer respectively, show that on the date of the incident i.e. on 18.12.2007, while they were on patrol duty, they happened to see two persons near the Forest Jenda, one of them holding a big can and the other a small can. The person who was holding the small can was the 1st accused. According to PWs 3 and 4, they saw the two engaged in pouring liquid from the larger can to a smaller can. Both of them would say that seeing them, the 2nd accused had taken to his heels. Crl. Appeal No.742/2012 6 They were able to apprehend the 1st accused.
12. PW3 speaks about the steps taken by him regarding preparation of arrest memo, taking of sample and also drawing up of Ext.P1 mahazar. Both of them would say that they were questioned by the investigating officer.
13. The evidence of PW5, the investigating officer, is to the effect that the accused and the sample were produced by PW3 and he registered a crime as per Ext.P6. He then speaks about having forwarded the sample to the court for sending them for chemical analysis and having obtained Ext.P10 report showing that the article contained was ethyl alcohol. Even though PWs 3 and 4 were cross examined at length, there is nothing to show that they are speaking falsehood and no inconsistencies could be pointed out that they are speaking false. No contradiction is pointed out and nor is there pointing out that they had any reason to falsely implicate the accused. Both of them had given a uniform version regarding the incident.
14. It is true that PWs 3 ad 4 have admitted that there are two houses nearby and they are not shown anyone from those Crl. Appeal No.742/2012 7 houses as witness. PW5 has also admitted the existence of two houses nearby. PWs 3 and 4 have stated that PWs 1 and 2 were seen coming along and the articles were seized and sampling was done. True, PWs 1 and 2 turned hostile. But they admitted their signatures in Ext.P1 mahazar and there is no case for them that they were not present at the spot. There is nothing to show that they are residents nearby. However, as they have admitted the signatures in Ext.P1, it is evident that they were present at the spot.
15. What is significant is that Ext.P1 is a contemporaneous document which contains the entire details spoken to by PWs 3 and 4 and it also mentions about the sampling etc. Being a contemporaneous document, it is of considerable weight. Ext.P10 report shows that the article sent for chemical analysis seems to contain ethyl alcohol. It was mainly the evidence of PWs 3 and 4 which passes scrutiny, which persuaded the court below to come to the conclusion that the offence as against the 1st accused has been made out. As already noticed, no inconsistency or contradiction is brought out in the evidence of Crl. Appeal No.742/2012 8 PWs 3 and 4 and there is nothing to show that they had any oblique motive to falsely implicate the accused. Moreover, the 1st accused was arrested from the spot with the contraband article.
16. The court below was therefore perfectly justified in coming to the conclusion that based on the materials, the offence as against the 1st accused is made out. The finding of the court below that he is guilty of offence under Section 8(2) of the Abkari Act cannot be found fault with.
17. Faced with the above situation, learned counsel on State Brief appearing for the appellant pointed out that some leniency may be shown with regard to sentence. It is pointed out that there is no criminal antecedent as far as the appellant is concerned and it is the first time he is involved in such an offence. It is further pointed out that he has been in custody for nearly two years and that may be taken into consideration.
18. Considering the quantity of the commodity seized from the 1st accused, the fact that there is no criminal antecedent as far as he is concerned and that he is a first time offender, it is felt Crl. Appeal No.742/2012 9 that some leniency can be shown in the matter of sentence. The court below has awarded a sentence of four years rigorous imprisonment and a fine of Rs.1,00,000/-. The sentence seems to be on the higher side considering the facts already mentioned.
In the result, while confirming the conviction for the offence under Section 8(2) of the Abkari Act, the sentence of four years rigorous imprisonment is set aside and instead the appellant is sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- with default clause of simple imprisonment for six months.
With the above modification, this appeal is disposed of.
Sd/-
P.BHAVADASAN JUDGE smp // True Copy // P.A. to Judge.