Kerala High Court
Reghunathan vs State Of Kerala on 27 December, 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
SATURDAY, THE 20TH DAY OF SEPTEMBER 2014/29TH BHADRA, 1936
CRL.A.No. 130 of 2004 (A)
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AGAINST THE JUDGMENT IN SC.No. 208/2001 of ADDITIONAL SESSIONS COURT
(ADHOC)-1, PATHANAMTHITTA DATED 27-12-2003
APPELLANT(S)/ACCUSED:
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REGHUNATHAN, AGED 43 YEARS,
S/O. RAGHAVAN, REGHALAYATHIL VEEDU, KARAKKADU
MULAKKUZHA MURI, CHENGANNUR VILLAGE.
BY ADVS.SRI.S.HARIKRISHNAN
SRI.V.VENUGOPALAN NAIR
RESPONDENT(S)/COMPLAINANT:
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STATE OF KERALA, REPRESENTED BY THE
EXCISE INSPECTOR, EXCISE RANGE OFFICE, PATHANAMTHITTA.
BY PUBLIC PROSECUTOR SRI. JOSE ADIYODI.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-09-2014, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Bb
K. Ramakrishnan, J.
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Crl.Appeal.No.130 of 2004
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Dated this, the 20th day of September, 2014.
J U D G M E N T
Accused in S.C.No.208/2001 on the file of the Additional Sessions Court (Adhoc) No-I, Pathanamthitta is the appellant herein.
2. The appellant was charge sheeted by the Excise Inspector, Pathanamthitta in O.R.No.10/98 of that Excise Range under Section 8 (1) & (2) of Abkari Act.
3. The case of the prosecution in nutshell was that on 14.05.1998 at about 4.30 p.m, the accused was found to be in possession of two litres of arrack in a 5 litre Cannas and found transiting the same along Kuriyanapally-Thavittupoika Panchayath road near the house by name Sukumara Vilasam belongs to one Sukumaran in violation of the provisions of the Abkari Act and thereby, he had committed the offence punishable under Section 8 (1) & (2) of Abkari Act.
4. After investigation, final report was filed before the Judicial First Class Magistrate Court, No-I, Pathanamthitta where it was taken on file as C.P.No.151/2000. The learned magistrate committed the case to the Court of Sessions, Crl.Appeal.No.130 of 2004 : 2 : Pathanamthitta where it was taken on file as S.C.No.208/01 and thereafter, the learned Sessions Judge made over the case to Additional Sessions Court, (Adhoc) No-I, Pathanamthitta for disposal.
5. When the appellant appeared before the court below, after hearing the Counsel for the appellant and the learned Additional Public Prosecutor of that court, charge under Section 8 (1) & (2) of Abkari Act was framed by the Additional Sessions Judge and the same was read over and explained to him and he pleaded not guilty. In order to prove the case of the prosecution, PWs 1 to 5 were examined and Ext.P1 to P8, P8(a) and P9 and MO1 were marked on the side of the prosecution. After closure of prosecution evidence, the accused was questioned under Section 313 of Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the prosecution evidence. He had further stated that he had not committed any offence and he was asked to come out of the house by the Excise Officials and thereafter, he was taken to Excise Office and he has been falsely implicated in the case. Since the evidence did not warrant an acquittal under Section 232 of Code of Criminal Crl.Appeal.No.130 of 2004 : 3 : Procedure, the Additional Sessions Judge directed the accused to enter on his defence. The Village officer was examined as DW1 on the side of the accused. Apart from the same, Ext.D1 contradiction was marked in the evidence of PW4, one of the witnesses was examined on the side of the prosecution. After considering the evidence on record, the court below found the appellant guilty under Section 8 (1) read with Section 2 of Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for two years and also to pay a fine of Rs.1,00,000/- in default to undergo simple imprisonment for one year. Aggrieved by the same, the present appeal has been preferred by the appellant-accused before the court below.
6. Head the Counsel for the appellant and the learned Public Prosecutor.
7. The Counsel for the appellant submitted that there is discrepancies in the evidence of PWs 1 & 2 regarding the place of occurrence and that probablise the case of the accused that he was not arrested from that place. Further, the evidence of independent witnesses namely PWs 3 & 4 also in a way support the case of the accused that he was taken from Crl.Appeal.No.130 of 2004 : 4 : his house and not from the place alleged by the prosecution witnesses. Further, there is a delay of four days in producing the article before the court and there is no explanation forthcoming for the delay. The evidence given by PW1 regarding this aspect is not convincing. Further, the seal used for sealing the article was neither mentioned in Ext.P1 or the sample seal was not produced before the court as well. So, according to the learned Counsel, the prosecution has failed to prove that the same article which has been alleged to have been seized from the possession of the accused has reached the court and the Chemical Analysis Report relates to that article and that benefit must be given to the accused and he is entitled to get acquittal and the court below was not justified in convicting the appellant for the offence alleged.
8. On the other hand, the learned Public Prosecutor argued that PWs 3 & 4 - the independent witnesses have admitted their signature in Ext.P1 and the article was produced before court and PW1 had given explanation for the delay and that was not challenged in cross examination as well. Further, there is nothing on record to show that the article produced was tampered when it was produced. So, under the Crl.Appeal.No.130 of 2004 : 5 : circumstances, court below was perfectly justified in convicting the appellant for the offence alleged.
9. The points that arise for consideration are;
(1) Whether the Court below was justified in convicting the appellant under Section 8 (1) read with Section 8 (2) of Abkari Act?
(2) If so, the sentence imposed is proper and legal?
Point No.1
10. The case of the prosecution as emerged from the prosecution witnesses was that on 14.05.1998 at about 4.30 p.m, while PW1 the Preventive Officer attached to Pathanamthitta Excise Range along with PW2 another Preventive Officer and other Excise guard were doing patrol duty along Kuriyanapally-Thavittupoika Panchayath road and when they reached near the house of one Sukumaran by name Sukumara Vilasam, they saw the accused going with MO1 Cannas and on seeing the Excise party, he tried to go into the rubber plantation nearby and so, they stopped the vehicle and intercepted the accused and verified MO1 cannas in the presence of PWs 3 & 4 and examined the contents therein and Crl.Appeal.No.130 of 2004 : 6 : they were convinced that it was arrack. They have also convinced the witnesses and thereafter, he took 300 ml. sample from the contents namely two litres found in a 5 litre cannas and sealed the same and affixed the label containing the signatures of the witnesses, himself and the accused and he sealed the cannas also in the same fashion and seized the same as per Ext.P1 Mahazar in the presence of witnesses. He arrested the accused and prepared Ext.P2 Arrest memo. Thereafter, he came to Excise office and prepared Ext.P3 Crime and Occurrence report as C.R.No.10/98 of Pathanamthitta Excise Range against the appellant under Section 8 (1) read with Section 8 (2) of Abkari Act. Thereafter, he produced the appellant on the same day before court along with Ext.P4 Remand application. He sent the article to court along with Ext.P5 Property list and sent Ext.P6 forwarding note with request to send the sample for chemical analysis and the articles were sent for chemical examination from court and Ext.P9 Chemical Analysis report obtained, in which, it was mentioned that the sample contained 31.21% by volume of Ethyl alcohol and it was having the smell having the characteristics of arrack. PW5 conducted the investigation. He Crl.Appeal.No.130 of 2004 : 7 : questioned the witnesses and recorded their statements, completed the investigation and submitted final report before court.
11. PW3 is an independent witness. In the chief examination, he had admitted that he had signed Ext.P1 mahazar and he was convinced by the Excise Officials that the articles seized was arrack and he had also stated that he knew the accused and he had seen the Excise Officials taking the accused as well. But, in the cross examination, he had made a different version stating that he had not seen the actual seizure and he had signed the mahazar from near the house of the accused. He had admitted that he is a close friend of the accused and he knew him for long time. Though in the chief examination, he had admitted that he was questioned by the Excise Inspector later and he had deposed about same thing. He denied the same in the cross examination. So, his attitude will go to show that he had really witnessed the incident but, now trying to help the accused and that was the reason why he is giving a different version in his cross examination than the version given by him in the chief examination. PW4 had though admitted the signature in Ext.P1, he had denied having Crl.Appeal.No.130 of 2004 : 8 : seen the incident or seizure. He was declared hostile by the prosecutor. In the cross examination, he had stated that he had signed the same near the house of the accused and not near the house by name Sukumara Vilasam situated on the side of Kuriyanapally-Thavittupoika Panchayath road. He had also admitted that he is a friend of accused and close associate of the accused. So, the possibility of him, not supporting the prosecution in order to help the accused cannot be ruled out.
12. PW1 is the detecting officer and PW2 is the preventive officer who accompanied him. PW1 had categorically stated about the seizure and arrest of the accused and preparation of the sample and seizure of the same as per Ext.P1 mahazar. This was corroborated by the evidence of PW2 and as well. Though they were cross examined at length, nothing was brought out to discredit the evidence regarding these aspects. It is true that there is some discrepancies brought out in the evidence of PWs 1 & 2 regarding the lie of the road in tune with the evidence given by DW1 the Village Officer. But, that alone is not sufficient to come to a conclusion that the seizure was not effected as stated by them as the incident happened in the year 1998 and Crl.Appeal.No.130 of 2004 : 9 : they were examined in court only the year 2003. So, that discrepancy in the evidence regarding the place of occurrence is not fatal so as to make their case totally untrue as claimed by the Counsel for the appellant. Further, PWs1 & 2 have identified MO1 as the cannas seized from the place and also they have identified the seal and the label affixed on MO1. There is no change in the label or the seal. It is settled law that merely because the seizure witnesses did not support the case of the prosecution is not a ground to disbelieve the case of the prosecution regarding the seizure and the court can rely on the evidence of the official witnesses if their evidence is convincing and repose confidence in the mind of the court. In this case, the evidence adduced on the side of the prosecution namely, PWs 1 & 2 coupled with Ext.P1 mahazar. It can be safely concluded that the prosecution has proved beyond reasonable doubt that the accused was arrested by PW1 along with two litres of liquor which is said to be arrack according to the prosecution.
13. PW1 had stated that on the date of seizure itself along with the remand report and the accused, the articles were produced before the court. But, since there was some Crl.Appeal.No.130 of 2004 : 10 : work load in the court, they did not receive the same and as directed by the officials of the court, he had produced the same on 19.05.98. But, he had admitted in his evidence that no such endorsement was made in Ext.P5 property list and Ext.P5 property list will go to show that the articles were produced before the court for the first time on 19.05.98. But, PW1 had categorically stated that even thereafter, he was in possession of the articles and till it was produced before the court on 19.05.98. It is true that delay in some cases without explanation may cause suspicion regarding the article said to have been produced in court with the article said to have been seized. But, if it has been properly explained and if the custody of the article has been explained by the prosecution and if it is convincing for the court to come to a conclusion that it was produced before court without a room for any manipulation, then, the delay alone is not sufficient to doubt the genuineness of the articles produced before the court. In this case, the evidence of PW1 is convincing regarding this aspect though his evidence to the extent that it was produced on 15.05.98 and it was returned without making endorsement by the court cannot be believed. But, that alone is not Crl.Appeal.No.130 of 2004 : 11 : sufficient to disbelieve his evidence regarding the factum of custody of the article from the date of seizure till it was produced before court without any tampering.
14. Ext.P9 Chemical Analysis report shows that the sample has the smell of characteristics of arrack and it contained 31.21% by volume of ethyl alcohol which is far below the standard provided for arrack. So, under the circumstances, this will go to show that the prosecution has proved beyond reasonable doubt that the articles seized was arrack and Ext. P9 Chemical Analysis Report relates to the sample that was taken from the contents in MO1 cannas by PW1 at the time of seizure and thereby, they have proved beyond reasonable doubt that the accused was found to be in possession of two litres of arrack, possession of which is punishable under Section 8 (1) read with Section 8 (2) of Abkari Act and the court below was perfectly justified in convicting the appellant for the offence under Section 8 (1) read with Section 8 (2) of Abkari Act which does not call for any interference.
Point No.2
15. As regards the sentence is concerned, the learned Crl.Appeal.No.130 of 2004 : 12 : Sessions Judge has sentenced the appellant to undergo rigorous imprisonment for two years and also to pay a fine of Rs.1,00,000/- in default to undergo simple imprisonment for one year more.
16. Considering the nature of offence, articles seized and also the impact of the offence on the society, the court below was perfectly justified in not invoking the provisions of Probation of Offenders Act in favour of the appellant. It may be mentioned here that persons who are committing the offence under the Abkari Act are committing the same knowing that it is an offence and ignoring its impact on the society. But, they are only considering about the monetary benefit that they are getting on account of their act. So, once such persons are found guilty of the offence, they must be seriously dealt with and severe punishment must be provided to them. But, considering the quantity seized, this court feels that the sentence of two years rigorous imprisonment and one year default sentence appears to be on higher side and the substantive sentence can be reduced to one year simple imprisonment and default sentence can be reduced to three months simple imprisonment retaining the fine of Crl.Appeal.No.130 of 2004 : 13 : Rs.1,00,000/- which is the minimum provided under the Act and that will be sufficient and that will meet the ends of justice.
So, the sentence is modified as one year simple imprisonment and also fine of Rs.1,00,000/- with default sentence of three months simple imprisonment. The point is answered accordingly.
In the result, the appeal is allowed in part. The order of conviction passed by the court below and fine of Rs.1,00,000/- imposed against the appellant under Section 8 (1) & (2) of Abkari Act are hereby confirmed. But, the substantive sentence of two years of rigorous imprisonment and the default sentence of one year simple imprisonment are set aside and the same are modified as follows:
The appellant is sentenced to undergo simple imprisonment for one year and also to pay a fine of Rs.1,00,000/- in default to undergo simple imprisonment for three months. Set off is allowed for the period of detention undergone by him Section 482 of Code of Criminal Procedure. Crl.Appeal.No.130 of 2004 : 14 : With the above modification of the sentence alone, the appeal is allowed in part.
Office is directed to communicate this judgment to the court below at the earliest.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge