IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 31ST OCTOBER, 2011 / 9TH KARTHIKA, 1933 CRL.A.No. 955 of 2010(D) ---------------------------------- (AGAINST THE ORDER IN SC.274/2008 of ADDL. SESSIONS COURT (ADHOC-I), THALASSERY) .................... APPELLANT(S)/ACCUSED: ------------------------------------ V.THANKACHAN @ ANTONY, S/O.JOSEPH, C.NO.8315, CENTRAL PRISON, KANNUR. BY ADV. ADV.SHEENA E.[STATE BRIEF] RESPONDENT(S): ------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.LALIZA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31/10/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 955 of 2010 ---------------------------------------- Dated this the 31st day of October, 2011 JUDGMENT The challenge in this appeal is against the conviction and sentence imposed against the appellant, who faced the charge in a trial for the offences punishable under Sections 8(1) and (2) of the Kerala Abkari Act. 2. The prosecution case is that on 23.5.2007 at 2.45 p.m., the appellant was found carrying a plastic bag containing 60 packets, each containing 100 ml. of arrack at the Ambalakandy-Keezhpally road, in front of the house of Thayyil Kunju, while transporting the arrack from Karnataka to Kerala State in contravention of the Kerala Abkari Act and Rules. On the basis of the above allegation, Crime No.6 of 2007 is registered in the Iritty Excise Range and on completing the investigation, report was filed in the Judicial First Class magistrate Court, Mattannur wherein C.P.No.116 of 2007 was instituted and finally, by order dated 3.1.2008, the learned Magistrate CRL.A.NO.955 of 2010 :-2-: committed the case to the Sessions Court wherein it is received as S.C.No.274 of 2008 from where the same is made over to the present trial court. As the accused has not engaged a lawyer, the court has appointed a counsel to defend the accused and thus, after hearing counsel for the accused and the prosecution, a formal charge was framed against the accused under Sections 8(1) and (2) of the Kerala Abkari Act, which when read over to the accused, he denied the same and pleaded not guilty and consequently, the trial was proceeded during which the prosecution has examined PWs.1 to 4 and produced Exts.P1 to P11 documents. No evidence either oral or documentary was adduced from the side of the defence. On conclusion of the trial, the trial court has found that the prosecution has succeeded in establishing its case against the accused and accordingly, the appellant/accused is found guilty under Sections 8(1) and (2) of the Abkari Act. Thus, on convicting the accused for the said offence, he is sentenced to undergo rigorous imprisonment for three years and CRL.A.NO.955 of 2010 :-3-: also to pay fine of Rs.1 lakh and in default, he is directed to undergo simple imprisonment for one year. Set off was allowed under Section 428 Cr.P.C. It is the above finding, conviction and sentence challenged in this appeal. 3. As the appellant is undergoing sentence in pursuance of the impugned judgment, he preferred this appeal from the jail and on receiving the same as ordered by this Court, the Registry has appointed Smt.E.Sheena from the panel of State Brief to prosecute the appeal for and on behalf of the appellant. Thus, I have heard Smt.E.Sheena, counsel appearing for the appellant and the learned Public Prosecutor. 4. The specific case of the prosecution is that the accused was found carrying a plastic bag containing 60 packets, each containing 100 ml. of arrack at the Ambalakandy-Keezhpally road in front of the house of Thayyil Kunju. In order to substantiate the above allegation, the prosecution has examined PWs.1 to 4. The case of the prosecution CRL.A.NO.955 of 2010 :-4-: mainly depends upon the evidence of PW1, the then Excise Preventive Officer who detected the crime. When PW1 was examined, he had deposed strictly in accordance with the prosecution allegation. According to him, when himself and party were on patrol duty along the Ambalakandy-Keezhpally road, the accused was found coming from the opposite direction carrying a black colored plastic bag on 23.5.2007 at 2.45 p.m. and on seeing the Excise Party, the appellant attempted to escape and immediately, he was intercepted and the Excise party inspected the contents of the bag in the presence of the independent witnesses. Thus, according to PW1, on inspection of 60 packets, each containing 100 ml. liquid and the packet having label declaration JP Distilleries Pvt.Ltd. 100 30º UP and also that some Kannada scripts were found on the packets. According to PW1, since all the packets were identical in nature, he had opened one packet and by smelling and tasting, he had confirmed the contents as arrack. According to PW1, subsequently, the accused was questioned and CRL.A.NO.955 of 2010 :-5-: arrested as per Ext.P1 arrest memo. The thondi articles were seized as per Ext.P2 seizure mahazar. He had also deposed that another packet was also opened and accordingly, the samples were taken and the sample bottles were sealed and the label was affixed and also obtained the signature of the accused and independent witnesses and he had also put his signature in the label. The remaining 58 packets were put in plastic bag and separately sealed. The two empty covers were also sealed. According to PW1, the labels were affixed on the sample bottles, empty packets and plastic bag containing the remaining arrack packets and the said labels contain the signature of the accused, witnesses and PW1. According to PW1, the information regarding the arrest of the accused was given to the wife of the accused and Ext.P3 is the office copy of the arrest notice. He had also stated that after the seizure and arrest of the accused, he proceeded to the Excise Range Office with the accused as well as the thondi articles and thereafter, he registered Ext.P4 crime and occurrence report. CRL.A.NO.955 of 2010 :-6-: According to PW1, he had also prepared Ext.P5 property list and Ext.P6 forwarding note. According to PW1, he produced the sample before the court after preparing Ext.P5 property list and also submitted Ext.P6 forwarding note to send the sample for chemical examination. He had deposed that he had also forwarded the remaining thondi article to the Assistant Excise Commissioner for preparation of inventory and inventory so taken in the presence of the learned Magistrate is proved through PW1 and the same is marked as Ext.P7. The other official witnesses examined from the side of the prosecution is that of PW4 who was the then Excise Inspector. He is the person who undertook the further investigation during which he had prepared Ext.P10 scene mahazar. Ext.P11 chemical analysis report was also marked through PW4. PW4 has also deposed in terms of the prosecution case. 5. Besides the above official witnesses, the prosecution has also examined PWs.2 and 3 who are the independent witnesses for the CRL.A.NO.955 of 2010 :-7-: seizure and arrest of the accused. Though they have admitted their signature, they turned hostile and Exts.P8(a) and (b) and Ext.P9(a) and (b) are contradictions marked through PWs.2 and 3. It is the above evidence and materials which formed the basis of the finding of the learned Judge of the trial court and for convicting the appellant. 6. The learned counsel for the appellant vehemently submitted that the entire prosecution is a false one and the appellant/accused is implicated in the case falsely. It is pointed out by the learned counsel for the appellant that the prosecution has not explained as to why PW1 alighted 50 metres away from the place of occurrence. So, according to the learned counsel, the above fact itself will be sufficient to disbelieve the prosecution case against the accused. It is also pointed out by the counsel that though the incident was on 23.5.2007, witnesses including the independent witnesses were examined, only on 26.6.2007 and therefore, there is delay in questioning the material witnesses which will go against the prosecution. The other point CRL.A.NO.955 of 2010 :-8-: raised by the learned counsel is that to prove the arrest and seizure of the contraband article, there is no independent witnesses and the interested version of PW1 is not corroborated by any independent witnesses. Thus, according to the learned counsel, the prosecution has miserably failed to prove the allegation against the accused with sufficient materials and evidence and the learned Judge of the trial court failed to appreciate the above fact and thus, according to the learned counsel, the accused is entitled to get a clear acquittal. 7. On the other hand, the learned Public Prosecutor vehemently submitted that the evidence of PW1 alone is sufficient to prove the guilt of the accused since the evidence of PW1 remains intact and nothing brought on record to discredit the version of PW1. It is also the submission of the learned Public Prosecutor that though PWs.2 and 3 turned hostile, the evidence of official witnesses viz., PWs.1 and 4 are sufficient to prove the guilt of the accused and the trial court has correctly found that the prosecution has succeeded in proving the case CRL.A.NO.955 of 2010 :-9-: against the accused and the said finding of the court below is supported by the evidence. Thus, according to the learned Public Prosecutor, no interference is warranted. 8. I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor and I have perused the judgment of the trial court. I have gone through the evidence and materials on record. In the light of the rival arguments advanced by learned counsel for the appellant as well as the learned Public Prosecutor and in the light of the materials and evidence on record, the question to be considered is whether the learned Judge of the trial court is justified in his finding and convicting the appellant/accused for the offences under Sections 8(1) and (2) of the Kerala Abkari Act. As I indicated earlier, to prove the detection, seizure of the contraband article and the arrest of the accused, the prosecution mainly depends upon the evidence of PW1. Though PW1 was subjected to lengthy cross-examination, nothing CRL.A.NO.955 of 2010 :-10-: was brought on record to discredit his version. According to the defence, the deposition of PW1 that he had alighted from the jeep 50 metres away from the place of occurrence is absolutely incorrect and improper and therefore, the prosecution case itself rendered as doubtful. According to me, the above point is not sufficient to overcome the concrete evidence adduced by the prosecution through the examination of PW1, the detecting officer and the contemporary documents i.e., Ext.P1 arrest memo, Ext.P2 seizure mahazar and Ext.P3 arrest notice. On scanning of the evidence of PW1, it can be seen that he had received information against the accused with respect to the sale of illicit arrack or imported arrack at the place of occurrence and therefore, according to PW1, he had stopped the jeep 50 metres away from the place of occurrence so as to reach at the place of occurrence without the noise of the vehicle so as to book the culprits. The above explanation of PW1 appears to be correct and reasonable and therefore, the contentions raised by counsel for the CRL.A.NO.955 of 2010 :-11-: appellant is not sustainable. 9. Another contention advanced by the defence is about the delay in examining the witnesses. When PW4 was examined, he had deposed that he had taken charge as Excise Inspector of Iritty Excise Range only on 11.6.2007 and due to heavy work load, he could not question the witnesses immediately after his assumption of charge. But the same was done only on 26.6.2007. Thus, it can be seen that the delay is only 15 days in questioning the witnesses. Going by the evidence of PW4, it can be further seen that he had reasonably explained the delay that occurred in questioning the witnesses. It has also come out in evidence that the post of Excise Inspector of Iritty Excise Range at that time was remaining vacant and no appointment was made to that post. Actually, PW4 was in the charge of Excise Inspector. The above facts are sufficient to hold that there was no laches or negligence on the part of the PW4 in questioning the materials witnesses and the delay was properly explained and because CRL.A.NO.955 of 2010 :-12-: of the two weeks delay in questioning the witnesses, the same would in no way affect the defence or prejudiced the accused. 10. Another point raised before this Court as well as the trial court is to the effect that there is no independent witness to corroborate the evidence of PW1, the official witnesse who detected the crime. It is true that the evidence of PW1 is not corroborated by any independent witness. But that alone is not a ground to discredit the version of PW1. In this juncture, it is relevant to note that this is not a case where the prosecution has not cited and examined independent witnesses. On the other hand, it can be seen that the detection of the offences and the seizure of the contraband article and the arrest of the accused were made in the presence of the independent witnesses whose signatures are obtained in the labels pasted on the samples and other materials objects. But when they were examined, they turned hostile and Exts.P8(a) and (b) and Ext.P9(a) and (b) proved the above facts. It is equally important to note that PW1, the CRL.A.NO.955 of 2010 :-13-: Preventive Officer deposed before the court fully in support of the prosecution case and his evidence remained intact in spite of the fact that he was subjected to lengthy cross-examination. There is no rule that the evidence of the official witnesses cannot be believed and acted upon unless their evidence are supported by the evidence from independent sources. Of course, in certain circumstances, the corroboration from independent source may be insisted especially when the evidence of official witnesses contained some contradictions or infirmities or when the evidence of such official witnesses became doubtful. But in the present case, no such contingencies are existing especially when the substantial evidence of PW1 remained unchallenged. It is further relevant to note that the evidence of PW1 is fully supported by the contemporary documents, Exts.P1,P2 and P3. It is also relevant to note that the samples were produced before the court on the next day and the accused was also produced in the court without any delay. The other contraband articles were sent to the CRL.A.NO.955 of 2010 :-14-: Assistant Excise Commissioner and Ext.P7 inventory was prepared in the presence of the learned Magistrate. It is also relevant to note that Ext.P11 chemical analysis report says that the samples reached in the hands of the chemical anlaysis lab remained in tact and as such there is no evidence or tampering of the samples. Therefore, the third point raised by the counsel for the appellant is absolutely unsustainable and accordingly, the same is rejected. 11. In the light of the above discussion and materials and evidence referred to above, I find no reason to interfere with the findings of the court below and according to me, the prosecution has succeeded in proving the case against the appellant/accused beyond all reasonable doubts and thus, I confirm the finding and conviction recorded by the trial court against the appellant. 12. Learned counsel for the appellant submitted that the sentence imposed against the appellant is disproportionate to the allegation raised against him and also submitted that the appellant is CRL.A.NO.955 of 2010 :-15-: the only bread winner of the family consisting of his wife and children and therefore, a lenient view may be taken in the matter of sentence. I have carefully considered the above submission of the learned counsel for the appellant. It appears that at the time of the incident, the accused was only at the age of 42 years and he is a coolie. The contraband article which was found in possession of the petitioner would come only 6 litres, though the same is a Karnataka made arrack. In the light of the above mitigating circumstances, according to me, the sentence awarded against the appellant requires reconsideration and liable to be modified. Having regard to the facts and circumstances involved in the case and in the light of the facts indicated above, two years rigorous imprisonment is sufficient to meet the ends of justice. While confirming the sentence of fine, the default sentence can be reduced to three months simple imprisonment. Accordingly, while confirming the conviction of the appellant for the offence under Sections 8(1) and (2) of the Kerala Abkari Act, in CRL.A.NO.955 of 2010 :-16-: modification of the sentence imposed by the trial court, the appellant is sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.1 lakh, in default, he is sentenced to undergo simple imprisonment for three months. The appellant is entitled to get set off under Section 428 of the Cr.P.C. for the period which he had undergone imprisonment as a pre-trial prisoner. In the result, this appeal is dismissed confirming the conviction of the appellant under Sections 8(1) and (2) of the Kerala Abkari Act, but subject to the modification with respect to the sentence as indicated above. In the light of the above modification with respect to the sentence, the Registry is directed to forward a gist of this judgment to the Superintendent of Central Prison, Kannur for appropriate action. V.K.MOHANAN, Judge MBS/ CRL.A.NO.955 of 2010 :-17-: V.K.MOHANAN, J. CRL.A.NO.955 of 2010 :-18-: CRL.A.No. 796 OF 2003 JUDGMENT Dated:4.10.2011 CRL.A.NO.955 of 2010 :-19-: