IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 30TH OCTOBER, 2008 / 8TH KARTHIKA, 1930 CRL.A.No. 402 of 2004 (SC.703/1999 of the Additional Sessions Judge Adhoc II, Kasaragod) .................... APPELLANT/ACCUSED: --------------------------- K.SUBRAMANYAN, S/O K.RAMAN, MOOLAKANDAM, AJANUR VILLAGE. BY ADV. SRI.M.THAMBAN SRI.T.SUDHAMANI RESPONDENTS/COMPLAINANT AND STATE: ------------------------------------------------------ 1. THE EXCISE INSPECTOR, HOSDURG EXCISE RANGE. 2. THE STATE OF KERALA REP. BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SMT.K.L.LAKSHMI RANI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.No. 402 of 2004 - A --------------------------------------------- Dated this the 30th day of October, 2008 J U D G M E N T The appellant is the accused in S.C.No.703 of 1999 in the court of the Additional Sessions Judge, Adhoc-II, Kasaragod. By the impugned judgment, the appellant/accused was convicted under Section 55(a) of the Abkari Act and sentenced accordingly. It is the above sentence and conviction, challenged in this appeal. 2. The prosecution case is that at about 3 p.m., on 5.1.1998, the accused was found in possession of three litres of arrack at a place called Moolakandam in Ajanur Village and thereby, committed the said offence. Based upon the said allegation, C.R.No.2 of 1998 was registered in the Hosdurg Excise Range. On completion of investigation, PW5 laid the charge before the Judicial First Class Magistrate Court-I. Hosdurg and the case was committed to the Sessions Court and the Sessions Court made over the case to the Assistant Sessions Court, Kasaragod for disposal and subsequently, it was withdrawn and records were transmitted to the trial court for disposal. When the matter was pending before the Assistant Sessions Court, a formal charge was framed against the accused which was read over and explained to him to which he pleaded not guilty. Thereafter, the prosecution advanced the evidences which consist of oral CRL.A. NO.402 of 2004 :-2-: evidences of Pws.1 to 5 and documentary evidences such as Exts.P1 to P7. MO1 white can was identified as material object. When the accused was questioned under Section 313 of the Cr.P.C., he had denied all the incriminating evidences. He submits that there was a raid by the Excise party at Moolakundam colony and the same was resisted by the local residents and the accused was in the forefront of the said agitation and therefore, the Excise party due to animosity implicated him in the above crime. From the side of the defence, though no witness was examined, defence exhibits such as Exts.D1 and D2 were produced and marked. After considering the facts and circumstances involved in the case, the trial court found that the accused was guilty of offence punishable under Section 55(a) of the Abkari Act. Accordingly, after hearing the accused on the question of sentence, he was sentenced to undergo rigorous imprisonment for one year together with payment of fine of Rs.1 lakh and in default, to undergo rigorous imprisonment for two months more. In this appeal, the above conviction and sentence are challenged. 3. I have heard the learned counsel for the appellant as well as the learned Public Prosecutor and also perused the records and other materials. 4. Learned counsel for the appellant submits that the CRL.A. NO.402 of 2004 :-3-: prosecution has miserably failed to establish the case beyond doubt. On the strength of Exts.D1 and D2 documents, the counsel pointed out that the distance between the places of occurrence in the present case and in Crime No.3 of 1998 of Hosdurg Excise Range is only 10 metres and if that be so, there need not be two separate raiding party and the above fact itself is sufficient to create doubt regarding the genuineness of the prosecution case. Another point argued by the learned counsel is that the sole independent witness, viz., PW1 cited by the prosecution turned against them and as such, there is no independent evidence to corroborate the evidence of other prosecution witnesses and therefore, the finding of the court below is liable to be set aside. It is also the case of the counsel that there is no label containing the name or signature of the accused or the Detecting Officer on MO1. Thus, according to the counsel, the present case is registered by the Excise Inspector only because of personal animosity and the prosecution has miserably failed to prove the case beyond reasonable doubt. 5. Supporting the judgment of the trial court, the learned Public Prosecutor submits that the possession and seizure of the contraband article from the accused is established by the prosecution through its evidence consisting of oral testimony of Pws.1 to 5 and also other contemporary documents such as Exts.P1, P2,P3, P7 etc. It is CRL.A. NO.402 of 2004 :-4-: also submitted by the learned Public Prosecutor that though the defence has taken a version on the basis of Exts.D1 and D2 that there need not separate raiding parties as the places of occurrence in both the cases are very adjacent, but the same is not substantiated. Therefore, he prays for dismissal of the appeal. 6. I have considered the arguments advanced by both counsel for the appellant as well as the learned Public Prosecutor. PW3 is the Excise Inspector attached to the Hosdurg Excise Range who detected the crime. He had deposed in terms of the prosecution case. According to his deposition, himself and the party were on patrol duty on 5.1.1998 and when passing through the N.H.Road at Moolakundam, the accused was found carrying a white can of 5 litres capacity and walking through the road. On examination of the can, it was realised that the can contained three litres of liquid and on tasting and smelling, the liquid was identified as illicit arrack. Accordingly, the contraband articles were seized and samples were drawn as per Ext.P1 seizure mahazar and the accused was arrested as per Ext.P3 arrest memo. The accused and the thondi articles had been brought to the Excise Range Office and handed over to PW4 who in turn registered Ext.P4 crime and occurrence report and prepared Ext.P5 property list and Ext.P6 forwarding note. PW4 produced the accused and the thondi articles CRL.A. NO.402 of 2004 :-5-: before the court below on the same date of arrest. On the basis of the forwarding note prepared by PW4, samples were sent for chemical analysis and Ext.P7 report was obtained. MO1 can was identified by both Pws.3 and 4. Though PW1 has admitted his signature in Ext.P1, he gave a different version as to how the same happened to be on Ext.P1 and thereby, turned hostile towards the prosecution. PW2 is the Village Assistant who prepared Ext.P2 site plan about the place of occurrence. Ext.P1 mahazar and Ext.P4 occurrence report were reached in the court on 6.1.1998 itself and the same bears the seal and initial dated 6.1.1998. It is relevant to note that the accused and the thondi articles had been produced before the court below on the date of arrest itself and Ext.P5 is the property list of the thondi articles. Thus it can be seen that the thondi articles and the accused were produced before the court below without any delay and on the next day, the other important documents like Ext.P1 mahazar, Ext.P4 occurrence report etc. were also reached in the court. All the prosecution witnesses, especially Pws.3 and 4 were deposed in accordance with the prosecution case and nothing was brought on record to discredit the version though they are examined extensively. Ext.P2, though prepared by the then Village Officer, the same was proved by the Village Assistant- PW2. Going by the above evidence of prosecution, it can be CRL.A. NO.402 of 2004 :-6-: seen that they have established the allegation against the accused with cogent evidence both oral and documentary. 7. Learned counsel for the appellant pointed out that the place of occurrence, time of occurrence etc. in Crime No 3 of 1998 of the same Excise Range was the same as that of the present crime. The above submission is made on the basis of Exts.D1 and D2 documentary evidences adduced by the defence. The trial court, especially on the basis of Ext.P2 site plan, found that the place of occurrence in the present case is situated on the side of the Kanhangad-Kasaragod NH near the house of Vaniyan Kunhiraman comprised in R.S.No.524/3A located on the eastern side of the National Highway. The oral evidence of PW3 tallied with Ext.P1 seizure mahazar and Ext.P2 site plan. The trial court, after considering Exts.D1 and D2, found that the place of occurrence in that case was situated at Moolakundam-Mannitta Road , a road deviating from National Highway. Thus, the trial court found that Exts.D1 and D2 are not helpful for the defence case. 8. I have gone through the oral evidences of Pws.3,4 and 5. Nothing was put to them with respect to Exts.D1 and D2. The defence did not summon any person concerned when Exts.D1 and D2 would show that the place of occurrence covered by Exts.D1 and D2 is one and the same place of occurrence in the present case namely, Crime CRL.A. NO.402 of 2004 :-7-: No.2/98. Therefore, it can be seen from the attempt made by the defence witnesses, the prosecution has succeeded in establishing the case against the accused beyond reasonable doubt and therefore, the finding arrived on by the trial court that the accused was guilty of the offence under Section 55(a) of the Abkari Act needs no interference. Accordingly, the conviction is confirmed. 9. Regarding the sentence, the learned counsel submits that the quantity involved is a substantially low quantity and therefore, the punishment imposed is disproportionate and exorbitant and further submits that a lenient view may be taken. From the judgment, it appears that the trial court was also of opinion that the quantity involved is only three litres which, according to the court below, is immaterial. Considering the totality of the case and also considering the fact that the quantity involved is only three litres. I am of the view that certain modifications can be made with respect to the sentence. Accordingly, the sentence of one year rigorous imprisonment is reduced to one month imprisonment. As the fine amount fixed by the trial court is only a minimum amount, no interference is called for, but the default sentence is reduced to one month from two months. The accused is entitled to set off under Section 428 of the Cr.P.C. for the period of imprisonment he had undergone as under trial prisoner. CRL.A. NO.402 of 2004 :-8-: With the above modification with respect to the evidence, the appeal is dismissed confirming the conviction. V.K.Mohanan, Judge MBS/ CRL.A. NO.402 of 2004 :-9-: V.K.MOHANAN, J. -------------------------------------------- Crl.A.NO. OF 200 ------------------------------------------- J U D G M E N T DATED: 10-2008 CRL.A. NO.402 of 2004 :-10-: