IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 9TH APRIL 2010 / 19TH CHAITHRA 1932 CRL.A.No. 152 of 2010(D) ------------------------------------- SC.1632/2005 of SESSIONS COURT, THALASSERY .................... APPELLANT(S): APPLICANT. ------------------------ V.K.DAMODARAN, C.NO.6840, S/O.MARAN, CENTRAL PRISON, KANNUR. BY ADV. LUIZ GODWIN D'COUTH[STATE BRIEF] RESPONDENT(S): ------------------------ STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR MR.VENUGOPAL M.R. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss V.K.MOHANAN,J. ------------------------------ Crl.Appeal No.152 OF 2010 ----------------------------------------------------- Dated this the 9th day of April, 2010 JUDGMENT Challenging the conviction and sentence imposed, against the sole accused, vide judgment dated 20.12.2008 in S.C.No.1632/2005 on the file of the Court of Sessions Judge, Thalassery, he preferred this appeal from the jail as he is undergoing imprisonment in pursuance to the above judgment. 2. The prosecution case is that on 21.9.2002 at about 5.30 p.m at Kiliyanthara check post, appellant/accused was found in possession and transporting 20 packets of Karnataka made arrack, 100 ml each, in a K.S.R.T.C bus bearing registration No.15/3304 plying between Veerajpetta-Karnataka to Thalasserry, for sale in violation of the provisions of the Kerala Abkari Act. On the detection of the above crime, the accused was arrested then and there. Based upon which Crime No.18/2002 was registered in the Crl.Appeal No.152 OF 2010 2 Excise Range, Mattannur. 3. After investigation, a report was filed before the Court of the Judicial First Class Magistrate, Mattannur, from where as per order dated 30.11.2005 in C.P.No.83/2005, the learned Magistrate committed the case to the Sessions Court where the case was numbered as S.C.No.1632/2005 and subsequently made over to the trial court for disposal. 4. On the appearance of the accused and after hearing both the prosecution as well as the defence, formal charge was framed against the accused under Sections 8(1) and (2) of the Abkari Act which read over and explained to the accused and he denied the said charge and pleaded not guilty, as a result of which trial was further proceeded, during which PWs.1 to 3 were examined and Exts.P1 to P7 were marked from the side of the prosecution. Mos.1 to 3 were also identified and marked as material objects. No evidence either oral or documentary adduced from the side of the defence. When the accused questioned under Section 313 of Crl.P.C, he denied the incriminating circumstances Crl.Appeal No.152 OF 2010 3 and the evidence emerged during the prosecution evidence, when put the same to him. He took the plea of innocence stating that on the date of the alleged incident he had taken liquor from Veerajpetta on his way back from labour and during his journey in the bus he was awakened by Excise Officials from his slumber and was asked showing certain packets from a plastic cover. According to the accused, since he was under the influence of liquor he could not properly reply to the question. According to him, the plastic bag was recovered beneath of his seat and he was implicated in the crime merely on suspicion. It was on the basis of above materials and evidence, the trial court found that the accused is guilty of the offence under Section 55(a) of the Abkari Act and accordingly he is convicted and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of rupees one lakh and in default he is directed to undergo rigorous imprisonment for a further period of one year. It is the above conviction and sentence challenged in this appeal, which preferred by the Crl.Appeal No.152 OF 2010 4 appellant from jail as he is undergoing imprisonment on the basis of the above conviction and sentence. This court after having condone the delay that occurred in filing the above appeal directed the Registry to appoint a counsel as state brief so as to prosecute the appeal for and on behalf of the appellant. Accordingly, Adv. Sri. Luiz Godwin D'Couth appointed as state brief to prosecute the appeal. 5. Thus I have heard Adv. Sri. Luiz Godwin D'Couth the learned counsel appearing as state brief for the appellant and also the learned Public Prosecutor. 6. To substantiate the above prosecution case, the prosecution mainly depends upon the oral testimony of PWs. 1 to 3 and also the documentary evidence such as Exts.P1 to P7. When PW1 examined, he had deposed that as instructed by his Superior Officer, himself and party were conducting inspection of vehicles and thus on 21.9.2002, Excise party lead by himself were posted at nearer to Kiliyanthara check post at Vilamana in Thalasserry Thaluk. According to PW1, during the campaign, PW1 waylaid a Crl.Appeal No.152 OF 2010 5 K.S.R.T.C bus Bearing No.KL-15/3304 and the Excise party inspected the bus, during which they seen the accused sitting on the right extreme on the rear second seat of the bus and he was carrying a plastic bag on his hand. According to PW1, on seeing the Excise Officials, the accused got perplexed which created suspicion and thus PW1 obtained the bag from the accused and examined the same. Of such examination, it was found that the bag contained 20 plastic covers of 100 ml containing full of liquid. According to PW1, on smelling and tasting the liquid, he had identified the same as illicit arrack. Thus according to PW1, the accused was arrested as per Ext.P2 arrest memo and he had prepared Ext. P1 mahazar through which contraband articles were seized and samples were taken. During trial, PW1 identified MO1 series of arrack packets, which are 18 in number, which was recovered from the possession of the accused. He had also identified MO2 series as the empty packets from where the samples were taken. After the arrest and seizure, PW1 and party came Crl.Appeal No.152 OF 2010 6 back to the Excise Range Office thereupon Ext.P3 Crime and occurrence report was prepared and the accused was produced before the Judicial First Class Magistrate Court, Marttannur on 22.9.2002. PW1 also deposed about Ext.P4 property list prepared by him and Ext.P5 forwarding note, on the basis of which the samples were sent for the chemical analysis and obtained P6 Chemical Analysis Report dated 30.12.2003. PW2 is the conductor of the said bus from where the accused was arrested along with the contraband article and he had deposed in terms of the prosecution. PW3 is an Assistant Excise Inspector at the time of the detection of the crime who accompanied PW1 in the detection of the crime. It is on the basis of the above materials and evidence, the trial court found that the accused has committed the offence under Section 55(a) of the Abkari act. 7. The learned counsel for the appellant vehemently submitted that the prosecution has miserably failed to establish the case against the accused beyond reasonable Crl.Appeal No.152 OF 2010 7 doubt especially when the prosecution failed to cite and examine any independent witnesses. The learned counsel submitted that even according to the prosecution, the accused was arrested and seizure was effected from a bus which was coming from Veerajpetta to Thalasserry with full of passengers and none of the passengers of the bus were examined to prove the prosecution case which according to the learned counsel will go against the prosecution. It is the contention of the learned counsel that the accused is a coolie worker, daily going to Veerajpetta to find out his livelihood and returning to the house and on the date of the incident, as usual he was coming after his work and as usual he used to take liquor on return after the work and when the detecting party questioned him, he was not able to answer properly and thus PW1 and party implicated the accused merely on the basis of suspicion as he was found drunken. The learned counsel further submitted that the bag which contained the contraband article was seized beneath the seat of the accused, where the accused was Crl.Appeal No.152 OF 2010 8 sitting at the time of the alleged detection and there is no evidence to show that the accused was possessing the same. To support the above contention, the learned counsel took me through the evidence of PWs.1 and 2. The learned counsel pointed out that PW2 has no case that he had noticed any bag held by the accused when he stepped in to the bus and also at the time of issuing the ticket. Thus the learned counsel submitted that except the interested version of PW1, there is no independent evidence to prove the possession and the witness namely PW2 who cited and examined to prove the above aspects miserably failed to depose before the court that he had noticed the bag allegedly held by the accused. Thus according to the learned counsel, the finding, conviction and sentence vide the judgment impugned are illegal and liable to be set aside. 8. On the other hand, the learned Public Prosecutor submitted that PW1 and party conducted inspection of the bus, especially the bus which were coming from Karnatakea Crl.Appeal No.152 OF 2010 9 state along the Veerajpetta-Thalassery road as instructed by the Superior Officer of PW1 and thus detected the offence. It is also submitted by the learned Public Prosecutor that the evidence of PW1 pointed out the guilty of the accused and though he was subjected to cross examination, nothing was elicited to shake the credence of the deposition of PW1. There is no contradiction or inconsistencies with the deposition of PW1. Thus according to the learned Public Prosecutor, there is no illegality in convicting the accused solely on the deposition of PW1. The learned Public Prosecutor submitted that the prosecution witness, namely, PWs. 1 to 3 are unanimous in their deposition that MO.3 white plastic cover containing contraband article was placed on the lap of the accused and it was on the basis of the above fact, the accused was questioned, but he was not able to answer properly. According to the learned Public Prosecutor, the trial court after considering the entire matter found the accused guilty and such finding is not liable to be interfered with in appeal. Crl.Appeal No.152 OF 2010 10 9. I have carefully considered the arguments advanced by the learned counsel for the appellants as well as the learned Public Prosecutor and also perused the evidence on record. Going by the evidence of PWs.1 to 3 supported by the contemporaneous documentary evidence Ext.P1 to P5, which would show that the accused was found in possession of the contraband article. The accused has no case that he was implicated in the crime due to any extraneous consideration or animosity. On the other hand, his contention itself is that as he was found drunkard, under suspicion, the prosecution fixed the liability of carrying or possessing the contraband article on his shoulder. I am unable to accept the above contention rather the fact pleaded by the accused himself is supplementary to the allegation of the prosecution. The prosecution case is that the accused was found in possession of Karnataka made arrack, which was held by the accused, while he was coming from Veerajpetta to Thalasserry in a bus from Karnataka. Admittedly, the Crl.Appeal No.152 OF 2010 11 accused was under the influence of liquor. Besides the above facts, PWs.1 and 2, were categorically stated that the MO.3 plastic bag which was containing contraband article was kept on the lap of the accused and which was not under the beneath of the seat where the accused was sitting at the time of the detection of the crime. The above evidence of the prosecution witness and the materials remain as unshaken. 10. The learned counsel for the appellant vehemently submitted that there is failure on the part of prosecution to obtain independent witness to prove the alleged seizure etc. It is true that there were passengers in the bus, but none of the passengers were made as a witness. But PW2, who is one of the witness for the seizure, is not a person belong to the Excise Department or a member among raiding party . PW2 is the conductor of the bus belong to KSRTC. Therefore, it cannot be said that there is no independent witness. It is also relevant to note that there is no rule that official witnesses cannot be pleaded unless Crl.Appeal No.152 OF 2010 12 corroboration from independent evidence. The above requirement will become relevant, if there is suspicion in the deposition of the official witnesses or some inconsistency or contradictions. But in the present case, there is no such infirmities so as to disbelieve the version of PW.1 or PW3. Therefore, the contention raised by the counsel regarding the non-examination of any of the passengers of the bus, is not sustainable. 11. In the light of the above discussion and materials referred to above, I am of the view that the prosecution has succeeded in establishing the allegation against the accused and therefore, the trial court is fully justified in convicting the accused under Section 55(a) of the Abkari Act and accordingly the above conviction is confirmed. 12. With respect to the sentence, the learned counsel submitted that the accused is a coolie worker, who is also an illiterate and at the time of the alleged incident, he was at the age of 45 years and now he had crossed 50 years and hence a lenient view may be taken. Having regard to the Crl.Appeal No.152 OF 2010 13 facts and circumstances involved in the case and considering the fact that the appellant has now passed the age of 50 years and the total quantity involved in the case is only two liters of Karnataka arrack, some modification can be made with respect to the sentence. In the present case, substantial sentence imposed against the petitioner is two years' rigorous imprisonment and set off was allowed. Thus the appellant/accused already undergone the substantive imprisonment awarded against him and the said period completed on 9.3.2010. Therefore, I confirm the substantial sentence already imposed against the appellant and also the order of granting benefit under Section 428 of Crl.P.C. With respect to the sentence of fine, as the same is the minimum sentence, the amount fixed as fine is also to be confirmed, but the default sentence fixed by the trial court is one year rigorous imprisonment and same is modified and reduced to one month rigorous imprisonment. In the result, this Criminal appeal is dismissed confirming the conviction and the sentence of imprisonment Crl.Appeal No.152 OF 2010 14 and fine, but his default sentence is modified and reduced to one month rigorous imprisonment. In the light of the above modification with respect to the default sentence and as the appellant had already undergone the substantial sentence imposed by the trial court, the appellant is entitled to get released from jail today, the date on which he completes the modified default sentence. Therefore, the Registry is directed to forward gist of this judgment to the Superintendent of Central Jail, kannur for the release of the appellant/accused forthwith, as he is completing one month rigorous imprisonment today towards the default sentence. The Crl.Appeal is dismissed subject to the above modification with respect to the default sentence. V.K.MOHANAN,JUDGE. mns