IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 31ST OCTOBER 2008 / 9TH KARTHIKA 1930 CRL.A.No. 1179 of 2006() ------------------------ SC.990/2004 of ADDL. SESSIONS JUDGE (AD HOC) II KASARGOD CP.63/2004 of JUDL. MAGISTRATE OF FIRST CLASS, KASARAGOD .................... APPELLANT: ACCUSED ------------------------ ABOOBACKER SIDDIQUE, AGED 32, S/O.ABDUL RAHIMAN, ARIKKADY, ARIKKADY BANNAMKULAM, BAMBRANE, ARIKKADY VILLAGE. BY ADV. SRI.I.V.PRAMOD RESPONDENT: COMPLAINANT --------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR, SRI.AMJAD ALI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT, J. ----------------------------------------------- Crl.A. No. 1179 OF 2006 ----------------------------------------------- Dated this the 31st day of October, 2008 O R D E R This appeal is preferred by the appellant who is now in custody to assail the verdict of guilty, conviction and sentence imposed on him in a prosecution under Section 55(a) of the Kerala Abkari Act. He faces the sentence of R.I for the period of three years and a fine of Rs.1,00,000/- and in default to undergo R.I for a further period of one year. 2. The charge against the petitioner is that he was found to transport 2000 packets of Karnataka arrack each containing 100ml in a Maruti car bearing registration No.MFF 3965 near Kumbala bridge in Kaippa village for sale in Kerala in violation of the provisions of the Kerala Abkari Act and Rules. Thereby he had allegedly committed the offence punishable under Section 55a of the Kerala Abkari Act. The offence was detected by the police party led by PW3 which was on routine vehicle checking duty on the public road at the relevant time. PW3 was accompanied by PW4. The Maruti car was allegedly asked to stop. There was only one person/driver in the car. He did not stop the vehicle and Crl.A. No. 1179 OF 2006 -:2:- attempted to speed away. The detecting officer PW3 accompanied by PW4 chased the car for some distance and ultimately overtook the said car. The petitioner who was driving the car allegedly stopped the car and took to his heels. The police officials chased him. He was apprehended and brought to the car. The search revealed that there were 2000 packets of arrack each containing 100ml packed in four sacks each containing 500 such packets. Seizure was effected under Ext.P1. PWs 1 to 5 are alleged independent witnesses who had witnessed the seizure and attested the seizure mahazer Ext.P1. PW6 conducted initial investigation. PW2 completed the investigation and filed charge sheet. 3. The accused denied the charges levelled against him and thereupon the prosecution examined PWs 1 to 6 and proved Exts.P1 to P8. MO1 series were also marked. 4. Ext.P2 is the report handing over the vehicle. Ext.P3 is the chemical examiner's report. Ext.P4 is the arrest memo. Ext.P5 is the F.I.R registered. Ext.P6 is the scene mahazer prepared. Ext.P7 is the property list to show the details of the Crl.A. No. 1179 OF 2006 -:3:- property sent to court and Ext.P8 is the forwarding note under which the sample was forwarded to the chemical examiner. 5. The accused in the course of cross-examination denied the alleged seizure. He took up a contention in the course of cross-examination and later when examined under 313 Cr.P.C that he was not driving the vehicle as alleged by the prosecution. According to him, the police had animosity against him. He is an autorickshaw driver. His licence was taken into custody by the police. About that there was a hot exchange of words between him and the police officials. They have foisted this false case because of such animosity. No defence evidence whatsoever was adduced. The learned Judge, on an anxious consideration of all the relevant inputs came to the conclusion that the prosecution has succeeded in establishing all ingredients of the offence punishable under Section 55a of the Kerala Abkari Act. Accordingly, the learned Sessions Judge proceeded to pass the impugned judgment. 6. The learned counsel for the appellant has advanced his arguments. The appeal was taken out of turn on the basis of the Crl.A. No. 1179 OF 2006 -:4:- submission that the appellant is undergoing imprisonment in prison as he could not comply with the conditions imposed on him in the order directing suspension of execution of the sentence. The learned counsel for the appellant assails the impugned judgment on the following grounds: i) The court below erred in placing reliance on the oral evidence of PWs 3 and 4 about the alleged seizure. ii) The learned Judge ought to have held that there is no proper investigation and the totality of circumstances does generate reasonable doubt about the alleged complicity of the appellant. iii) The sentence imposed is excessive. 7. The prosecution relies on the oral evidence of PWs 3 and 4. PW3 is the detecting police official and PW4 is a subordinate who accompanied PW3. The evidence of PWs 3 & 4 are assailed firstly on the ground that they are interested. I find no substance in this contention whatsoever. It is the sublime public duty of all police officials to detect offence, conduct a proper investigation and bring the offenders to book. This interest which every Crl.A. No. 1179 OF 2006 -:5:- conscientious police official is expected to have in the due discharge of his official duty cannot relegate him to the position of an interested witness for whose testimony the courts should demand corroboration. It is crucial to note that there is not even the semblance of a specific and reasonable suggestion as to why PWs 3 and 4 are foisting a false case against the appellant. Of course a convenient theory is suggested that the appellant was involved in a traffic offence and he had spoken disapprovingly to some police officials. That suggestion by itself is not a reason to suspect that the credibility of PWs 3 and 4. 8. The oral evidence of PWs 3 and 4 gets convincing assurance from the contemporaneous seizure mahazar Ext.P1, the signature in which is admitted by PWs 1 and 5. Though they chose to turn hostile, both of them admitted their signatures in Ext.P1. PW5 went further to speak in tandem with the prosecution case about the alleged interception of the vehicle, but chose to feign ignorance as to whether after search anything productive came out. I need only mention that notwithstanding the hostility of PWs 1 and 5, their evidence including the admission of Crl.A. No. 1179 OF 2006 -:6:- the signatures in Ext.P1 and the further admissions made by PW5, of what preceded his signing the seizure mahazar are sufficient to afford corroboration for oral evidence of PWs 3 and 4. I do further note that Ext.P4 arrest memo and Ext.P5 FIR do also satisfactorily support the oral evidence of PWs 3 and 4. I conclude that there is no reason whatsoever to doubt, suspect or discard the evidence of PWs 3 and 4. Their evidence clearly shows that the appellant was transporting huge quantity of arrack in a costly vehicle driven by him. It is idle to assume that such story should have been invented only to falsely implicate the appellant. In the nature of the facts and circumstances of this case no reasonable doubt whatsoever is aroused in my mind against the testimony of PWs 3 and 4. 9. The learned counsel for the appellant then brings to my notice several inadequacies in the investigation of the case. The counsel points out that there has been no proper and careful description of the contraband articles including the containers in Ext.P1 seizure mahazar. The counsel then points out that no serious or worthwhile investigation has been conducted to Crl.A. No. 1179 OF 2006 -:7:- ascertain the ownership of the Maruthi car in which the transportation was undertaken by the petitioner. Counsel also relies on the circumstances that though the occurrence was on 26.05.02, the contraband articles had reached the court only on 10.06.02. These, according to me, are not at any rate sufficient to come to a conclusion that the prosecution version deserves to be thrown over board. The inadequacies in investigation do definitely cause eyebrows to be raised but it will certainly be improper for a court to concede to the accused any undeserved advantage or benefit merely for the reason that the investigation has not been conducted properly. The crucial question is whether the inadequacies or imperfections in investigation are sufficient to generate any reasonable doubt in the mind of the court. When that test is followed, I am satisfied that the oral evidence of PWs 3 and 4 do not warrant rejection for any reason. 10. I am in these circumstances satisfied that prosecution has succeeded in establishing the offence alleged against the appellant and the appellant is not entitled to any benefit of doubt. The challenge raised on grounds 1 and 2 must in these Crl.A. No. 1179 OF 2006 -:8:- circumstances fail. 11. The counsel prays that leniency may be shown to the appellant. He has been in prison for a long period of about one year by now. It is prayed that the substantive sentence of imprisonment and the default sentence may be reduced. Fine imposed is the minimum prescribed under law and therefore the sentence of fine does not warrant interference. 12. Having considered all the relevant circumstances including the quantity of the contraband article involved and the method of transportation, I am satisfied that some leniency can be shown to the accused on the quantum of substantive sentence as also the default sentence. 13. In the result, a) This appeal is allowed in part. b) The verdict of guilty and conviction of the appellant under Section 55(a) of the Kerala Abkari Act are upheld. c) Substantive sentence of imprisonment and default sentence imposed are modified and reduced from R.I for a period of three years and one year to R.I Crl.A. No. 1179 OF 2006 -:9:- for a period of two years and six months respectively. d) Sentence of fine imposed is upheld. 14. Communicate this judgment to the court below forthwith. The court below shall issue revised warrant of commitment. Communicate the order to the prison authorities and to the appellant through the prison authorities. R. BASANT, JUDGE ttb Crl.A. No. 1179 OF 2006 -:10:- Crl.A. No. 1179 OF 2006 -:11:-