IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 30TH SEPTEMBER 2008 / 8TH ASWINA 1930 CRL.A.No. 1159 of 2008() ------------------------ SC.596/2005 of ADDL.SESSIONS COURT (ABKARI CASES) KOTTARAKKARA .................... APPELLANT(S): -------------- SHAJI, C.NO.2474, CENTRAL PRISON, TRIVANDRUM. BY ADV. ADV.R.KRISHNA KUMAR[STATE BRIEF] RESPONDENT(S): --------------- STATE OF KERALA REPRESENTED BY A PUBLIC PROSECUTOR. PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.Appeal. No.1159 of 2008 ------------------------------------- Dated this the 30th day of September, 2008 J U D G M E N T This appeal has been preferred against the verdict of guilty, conviction and sentence imposed on the appellant in a prosecution under Section 55 (g) of the Kerala Abkari Act. The crux of the charge against him is that he was found on 06.09.04 at about 6.15 p.m to be in possession of 25litres of wash in a 35 litres can for the purpose of manufacture of arrack and transporting the same through the nadavarambu touching the road proceeding from Maroormukku to Kuruvayal. The petitioner was intercepted and arrested. Seizure of the contraband article was effected. After taking the sample, the balance was destroyed at the scene. The excise party consisting of PWs 1 and 4 had detected the crime. Ext.P1 seizure mahazar was prepared at the scene. Ext.P2 arrest memo and Ext.P3 arrest intimation were prepared. Along with the contraband article, the accused was produced before PW2, the excise inspector who registered Ext.P4 occurrence report. PW3 excise inspector conducted investigation. Ext.P5 is a list of articles. Crl.Appeal. No.1159 of 2008 2 Ext.P6 is the forwarding letter. Ext.P7 is an inventory of items. Ext.P8 is the report of PW2 and Ext.P9 is the chemical examiner’s report. PW5 is an independent witness who was allegedly present to witness the seizure. He had signed in Ext.P1 seizure mahazar also. 2. Investigation was conducted and final report was filed. Cognizance was taken. The case was committed to the court of Session. The accused pleaded not guilty to the charge levelled against him. Thereupon the prosecution was directed to adduce evidence in support of this case. PWs 1 to 5 were examined and Exts.P1 to P9 were marked on the side of the prosecution. All witnesses supported the case of the prosecution, except PW5 an independent attestor to Ext.P1 seizure mahazar. He did however admit the signature in Ext.P1 though he stated that he was ignorant of the contents of Ext.P1 seizure mahazar. 3. After the close of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. He pleaded ignorance. He contended that the empty container M.O 1 was seized in some other manner and a false case was initiated against the petitioner. No defence evidence was adduced. Crl.Appeal. No.1159 of 2008 3 4. The learned Sessions Judge on an anxious consideration of all the relevant inputs came to the conclusion that it was safe to place reliance on the oral evidence of PWs 1 and 4 which oral evidence is supported by the contemporaneous seizure mahazar Ext.P1, the signature in which is admitted by PW5, the alleged independent witness though he did not specifically speak in support of the case of the prosecution. Such evidence is sufficient to establish the offence under Section 55 (g) of the Abkari Act, it was held. Accordingly the learned Sessions Judge proceeded to pass the impugned judgment. 5. This appeal has been preferred through prison authorities. The services of a State Brief Counsel was made available to the appellant. Sri.R.Krishnakumar, counsel has advanced detailed arguments. The counsel assails the impugned verdict of guilty, conviction and sentence on the following grounds. i) The court below ought not have placed reliance on the interested oral evidence of PWs 1 and 4. ii) The course adopted by the detecting officer of destroying the wash allegedly seized at the scene of the crime is unjustified. Crl.Appeal. No.1159 of 2008 4 iii) There has been infraction of the stipulations of the excise manual --- in that 3 samples of the contraband article was not taken by the detecting officer. iv) Though it is claimed that two independent witnesses were present at the scene and had signed the seizure mahazar only one of them, ie.PW5 was examined by the prosecution. v) The sentence imposed is at any rate excessive. 6. It is contended that PWs 1 and 4 are excise officials and hence interested in this prosecution. They being detecting officials they have an interest in somehow securing the conviction of the appellant, it is contended. It is of course true that PWs 1 and 4 are excise officials and in such capacity they are bound to detect offences and bring the offenders to book. But this interest which every sublime excise official is expected to have in the better discharge of his official duty cannot by any stretch of imagination bring him to the category of an interested witness whose evidence is to be approached with doubt, distrust, suspicion and reservation by courts. I have gone through the Crl.Appeal. No.1159 of 2008 5 cross examination of PWs 1 and 4 in detail. It must be noted that there is no specific personal motive alleged or suggested against PWs 1 and 4 which could have persuaded them to make false allegations against the appellant. In these circumstances I am satisfied that the evidence of PWs 1 and 4 is entitled to confirm reasonable and fair approach and appreciation. So reckoned I find no reason to discard the testimony of PWs 1 and 4 which interse offers support in the prosecution version. 7. The contemporaneous document Ext.P1 seizure mahazar prepared at the scene by the detecting officials is also available to support the version of the prosecution. The contemporaneous Ext.P1 offers intrinsic material to corroborate the prosecution version. PW5 has of course turned hostile. It is not infrequently that courts in India come across the scenario of alleged independent witnesses turning hostile to the prosecution with impunity. PW1 has subsequently admitted his signature in Ext.P1 and no satisfactory explanation is offered for the presence of his signature in Ext.P1. The contents of Ext.P1 in which the signature of PW5 is admitted, goes a long way for offering support for the version of PWs 1 and 4. I am, in these circumstances satisfied that the reliance placed on the oral Crl.Appeal. No.1159 of 2008 6 evidence of PWs 1 and 4 by the learned Sessions Judge is absolutely justified and that discretion exercised by the learned Sessions Judge does not warrant interference in appeal. 8. The evidence shows and the contemporaneous Ext.P1 seizure mahazar confirms that the contraband article – wash seized, measuring 25 litres was destroyed after the sample was taken. The provisions of the Excise Manual does not proscribe such a course. Satisfactory explanation has been offered as to why that course was resorted to. The fact that contraband article was destroyed in the instant case does not at all persuade me to view the evidence of Pws 1 and 4 with any reservation. The innocuous non compliance with the obligation to place the contraband articles before court does not appear to me to be crucially relevant at all. 9. The Excise Manual in Clause 34 directs that 3 samples of the contraband article should be taken. That has not been done. Only one sample has been drawn. That innocuous non compliance with the stipulation in the excise manual does not also persuade me to throw overboard the evidence of Pws 1 and 4 which does appear to be absolutely dependable and trust worthy. Crl.Appeal. No.1159 of 2008 7 10. It is true that the second independent attestor to Ext.P1 has not been examined. In the total absence of allegations of any personal motive for Pws 1 and 4 to foist a false case against the appellant, I am satisfied that such non examination of the witness is also not to be viewed with any serious suspicion or distrust. I am, in these circumstances, satisfied that all the challenge raised on merits must fail. I am satisfied that the oral evidence of Pws 1 and 4 which is supported by the contemporaneous Ext.P1, signature in which is admitted by PW5, is sufficient to sustain the verdict of guilty and conviction under Section 55 (g) of the Kerala Abkari Act. 11. Lastly and finally it is contended that the sentence imposed is excessive. The sentence of fine imposed is the minimum that can be imposed under law. The counsel submits that at any rate imposition of a sentence of S.I for a period of 4 years is not necessary or warranted. Even going by the case of the prosecution, the appellant is shown to be only a person who transported the contraband article. He is not shown to be or even alleged to be having any further role in the illicit distillation of arrack. In these circumstances I agree with the learned counsel for the appellant that leniency can be shown and the Crl.Appeal. No.1159 of 2008 8 sentence imposed can be modified and reduced. Imposition of a sentence of S.I for a period of 9 months, I am satisfied, shall eminently serve the interests of justice. The challenge in this appeal succeed to that limited extent alone. 12. In the result: a) This Appeal is allowed in part; b) The verdict of guilty and conviction of the appellant under Section 55 g of the Kerala Abkari Act are upheld; c) But the sentence imposed on the appellant is modified and reduced. In supersession of the substantive sentence of imprisonment imposed on him by the court below, he is sentenced to undergo S.I for a period of 9 months. The sentence of fine imposed and the default sentence are upheld. The direction that the appellant is entitled for set off is also upheld. 13. Communicate a copy of this judgment to the court below for issue of a revised warrant of commitment. Communicate the order to the prison authorities also. Sd/- (R.BASANT, JUDGE) rtr/- /true copy/ P.A to Judge Crl.Appeal. No.1159 of 2008 9 GIST OF THE JUDGMENT xxxxxxxxxxxxxxxxx In the result: a) This Appeal is allowed in part; b) The verdict of guilty and conviction of the appellant under Section 55 g of the Kerala Abkari Act are upheld; c) But the sentence imposed on the appellant is modified and reduced. In supersession of the substantive sentence of imprisonment imposed on him by the court below, he is sentenced to undergo S.I for a period of 9 months. The sentence of fine imposed and the default sentence are upheld. The direction that the appellant is entitled for set off is also upheld. Communicate a copy of this judgment to the court below for issue of a revised warrant of commitment. Communicate the order to the prison authorities also. (R.BASANT, JUDGE) Crl.Appeal. No.1159 of 2008 10 rtr/-