IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 28TH JANUARY 2008 / 8TH MAGHA 1929 CRL.A.No. 1026 of 2007 -------------------------------------- SC.1278/2002 of ADDL. SESSIONS COURT (ABKARI CASES) KLOTTARAKKA CP.242/2001 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOTTARAKKARA .................... APPELLANT: VELU, S/O.MADHAVAN CONVICT NO.9795 CENTRAL PRISON, TRIVANDRUM. BY ADV. SRI.MANJU ANTONY[STATE BRIEF] RESPONDENT: STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR OF THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM. BY PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 1026 of 2007 --------------------------- JUDGMENT Convict No.9795 Velu has preferred this appeal from Central Prison, Thiruvananthapuram assailing the conviction and sentence passed against him by the Additional Sessions Judge (Abkari Cases), Kottarakkara, vide judgment dated 16.5.2007 in S.C. No.1278/02 for offence under Section 55(a) of the Abkari Act read with Section 8(1) and (2) thereof. On conviction, he is sentenced by the court below to undergo rigorous imprisonment for a term of three years and to pay a fine of Rupees one lakhs and in default to undergo rigorous imprisonment for a further term of three months. Right of set off under Section 428 of the Cr.P.C. was also granted. 2. The prosecution case is that at about 3 p.m. on 17.8.1999, while PW4, the Assistant Excise Inspector of Chadayamangalam Excise Range, was conducting patrolling along with his party, consisting of Preventive Officers, PWs 3 and 5, the CRA 1026/07 2 appellant was found in possession for sale and in transit of seven litres of arrack in a ten litre black can along the Panchayat Road in front of the Cashew Factory at Pannavila, by the side of the residence of Sasi of Pannavila Veedu. PW4 and party effected seizure of arrack from the possession of the appellant preparing mahazar in that behalf and produced it before PW6, the Excise Inspector of Chadayamangalam Excise Range, who registered the crime, drawing up Exhibit P4 occurrence report in that behalf. PW7, the successor in office of PW6, conducted investigation in the case and on completion of the investigation, he laid charge against the appellant before the Judicial First Class Magistrate's Court-II, Kottarakkara and the case was registered on the file of his court as C.P.No.242/01 and vide proceedings passed by the learned Magistrate in the committal proceedings aforesaid, the case was committed to the Sessions Division, Kollam, from where, it was made over to the Assistant Sessions CRA 1026/07 3 Court, Kottarakkara. Thereafter, the case was transferred to the Special Court for Trial of Abkari Cases at Kottarakkara. 3. On appearance of the appellant in the court below pursuant to issuance of summons, he engaged his own Lawyer to defend the case on his behalf. Thereafter, preliminary arguments of the learned public prosecutor as also the appellant were heard, charge was framed against the appellant for offence under Section 55(a) of the Abkari Act read with Section 8(1) and (2) thereof, was read over and explained to the appellant and he was questioned. Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted by the court below. 4. Prosecution examined PWs 1 to 7, got marked Exhibits P1 to P6 and got identified Mos 1 and 2. On the prosecution closing their evidence, the appellant was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and CRA 1026/07 4 maintained that he is innocent. According to the appellant, he was being arrested, getting him down to the Excise Office from his house and this case was being falsely foisted against him. However, he did not adduce any evidence in defence. The court below considered the case in the light of the evidence adduced as aforesaid, found the appellant guilty of the offence punishable under Section 55 (a) of the Abkari Act read with Section 8(1) and (2) thereof, convicted him thereunder and sentenced him as already stated. Hence this appeal from Jail by the aggrieved appellant. 5. As the appellant had not engaged a Lawyer of his choice, Advocate Sri.Manju Antony was appointed on State Brief to argue the appeal on behalf of the appellant. 6. It is vehemently argued by the counsel on State Brief that the case is one falsely foisted against the appellant; that the independent witnesses, namely, PWs 1 and 2, do not swear to the presence of the appellant at the scene of CRA 1026/07 5 occurrence and seizure of arrack and consequently, the only evidence is that of PW4, the Detecting Officer, and PWs 3 and 5, the Preventive Officers, who were accompanying PW4 and that therefore, the evidence tendered by them should not have been accepted to enter into a conviction of the appellant. He further contends that the appellant is one, who had no prior conviction, which is a relevant factor to be considered under Section 53 of the Evidence Act and that therefore, in any event, the appellant should not have been held guilty of the offence under the Abkari Act on the evidence of the Excise officials only. It is further contended by the counsel on State Brief that the duplicate copy of the forwarding note has not been marked on the side of the prosecution and therefore, it is not clear as to whether in the forwarding note, sample seal had been affixed or not and therefore, the chance of tampering with the material object cannot be ruled out. Further, according to him, if at all the occurrence has CRA 1026/07 6 taken place in front of the house of Sasi of Pannavila Veedu, there was nothing which prevented the excise officials to cite him as a witness and also for the reason that there was no arrack within MO1 can at the time of trial, the reason for which is not explained, the prosecution case has to be disbelieved and the appellant acquitted, granting at least the benefit of doubt. 7. PWs 1 and 2 are attestors to Exhibit P1 mahazar. They have proved Exhibit P1 as the mahazar, wherein they have affixed their signatures as attestors. PW1 has deposed that he affixed in Exhibit P1 in proof of the excise officials having come over there, though he does not know the contents of Exhibit P1 and further that he knows the appellant, who is his neighbour. PW2, the brother of PW1, who also is an attestor to Exhibit P1 mahazar, has proved Exhibit P1. He also swears that he has not understood the contents of Exhibit P1 mahazar, but that, at that time, he did not see anyone else there. It is based on the said CRA 1026/07 7 statement of PW2 that it is contended by the counsel on State Brief that the accused was not present there, at the alleged scene of occurrence, but that, he was being arrested from his house, as stated by him and a false case was being foisted against him. It is worthy to note that no question was put to PWs 1 and 2 as to whether the accused was present at the scene of occurrence. PW1 had already stated that he knows the appellant and he is his neighbour. Obviously, the evidence of PW1 shows that PW2 was present and he has signed in Exhibit P1 as an attestor. If PW1 was present then, the evidence of PW2 that he did not see anybody else at the scene of occurrence, which means that other than the Excise officials nobody was there, cannot be correct. No suggestion is put to PWs 1 and 2 that Exhibit P1 mahazar was being got attested by them not at the scene of occurrence stated by them, namely by the bank of Ithikkara River, but at the Excise office, as suggested. Nothing prevented such questions being asked to PWs CRA 1026/07 8 1 and 2, suggesting that they were signing as attestors to Exhibit P1 at the Excise Office and not by the side of Ithikkara River or that they did not see the appellant at the alleged scene of occurrence. 8. PW4 is the Detecting Officer and he was the Assistant Excise Inspector of Chadayamangalam Excise Range Office. He has deposed to the detection of crime by intercepting the appellant, who was carrying a ten litre can in his hand and of examination of the contents in the can and of their detection of the contents therein as seven litres of illicit arrack and consequent preparation of Exhibit P1 mahazar and arrest of the appellant, preparing Exhibit P2 arrest memo and Exhibit P3 arrest intimation. The suggestion made in cross- examination that the case was being foisted, getting down the appellant to the Excise Office to save someone else, is strongly denied by PW4. The evidence of PWs 3 and 5, who accompanied PW4 in the detection and seizure, has corroborated the CRA 1026/07 9 testimony of PW4 regarding the material portion of his evidence, establishing the guilt in the appellant. They have also given evidence regarding the sampling and of affixing label on the samples as also on MO1 can. 9. It is true that the prosecution case is that the appellant was intercepted in front of the house of Sasi, adjacent to the Cashew Factory at Pannavila. However, the presence of Sasi is not at all suggested in cross-examination and if at all Sasi was not at the scene of occurrence, it is not necessary for the prosecution to examine the said Sasi as a witness and his non-examination as a witness is not of any consequence at all in the case. Despite cross-examination, nothing has been brought out in the testimony of PWs 3 and 5 to discredit their testimony. 10. PW6, who was the Excise Range Inspector of Chadayamangalam Excise Range Office at the relevant time, has deposed that the material objects and the records prepared by PW4 were produced before him CRA 1026/07 10 along the with the appellant on 17.8.1999 and that he prepared Exhibit P4 occurrence report in relation to the occurrence and produced the appellant before court the next day, namely on 18.8.1999 along with the remand report. He has also proved Exhibit P5 property list, where under he has submitted the material objects and the records before court and that was on 18.8.1999. It is seen from Exhibit P5 that the learned Magistrate has ordered on 18.8.1999, on the submission made from his office that the material objects (MO1) be sealed and returned with a direction to keep the same until further directions, for the reason that there is no space to keep Item No.1, namely MO1, in the thondi room and accordingly, it was returned to keep the same in safe custody with direction to produce it as and when required. It was, accordingly, that the can along with the balance arrack was kept at the Excise Officer till it was produced before court for the purpose of the case. The fact that the seal had been not intact on the CRA 1026/07 11 cap of MO1 and that MO1 had a hole in its bottom and consequently, there was no arrack within the can, however, does not have any bearing, as far as this case is concerned. The appellant is not prejudiced when the balance arrack, after taking the sample, is lost somehow, in view of MO1 can getting damaged at a subsequent stage. Exhibit P6 is the report of chemical analysis of the sample of arrack forwarded for chemical examination. It has been observed by the Joint Chemical Examiner, who has examined the sample, that the sample is one sealed bottle, containing 300 ml. of clear and colourless liquid alleged to be arrack involved in Crime No.66/99 of Chadayamangalam Excise Range; that the seal on the bottle is intact and was found tallying with the sample seal provided. This means that the sample had not been tampered with. 11. There is nothing wrong in marking the duplicate copy of the forwarding note, if at all that was found to be having any relevance. In that case, request should have been made in the court CRA 1026/07 12 below to have the duplicate copy of the forwarding note also marked. That not having been done, it is futile to contend before this Court that non marking of duplicate copy of the forwarding note would suggest tampering with the sample. No question was put to the witnesses as to whether the sample had not been tampered with. There is no circumstance also, which suggest that the sample had been tampered with at any point of time. It is also worthy to remember that it was only MO1 that was entrusted back with the excise officials for being kept in safe custody and not the samples. In the circumstances, there is no merit in the contention that tampering of the samples cannot be ruled out for reason of non marking of duplicate copy of the forwarding note. 12. It is also urged that certain documents were not marked through the proper witnesses. It is contended by the counsel on State Brief that Exhibits P2 and P3 were being marked through PW3, whereas, it is one prepared by PW4 and further that CRA 1026/07 13 MOs 1 and 2 were being got marked through PW3 and that those should have been marked only through PW4, who has taken it into bandavast, affixing the seal and labeling. It is true that Exhibits P2 and P3 were got marked through PW3 and MOs 1 and 2 were got identified by PW3, who was a Preventive Officer, who accompanied PW4 in the detection and seizure. But, all the same those exhibits were got proved and MOs were got further identified also through PW4. Those exhibits were got further proved and MOs were got further identified by PW5, who also is a Preventive Officer, who accompanied PW4 in the detection and seizure. When PW3 is examined, prior to examination of PW4, unless those exhibits, which were prepared by PW4 and MOs, which were taken into custody by PW4 in his presence, are not put to him, it will certainly be contended that PW3, who accompanied PW4, has not proved or identified those Exhibits or MOs. In the circumstances, there was no impropriety in having marked Exhibits P2 and P3 through PW3 and MOs 1 and CRA 1026/07 14 2 having been got identified through PW3, which were further got proved and identified through PW4 and PW5. There is no merit in the contentions so advanced. Thus, no circumstance exists to reverse or set aside the conviction entered into by the court below against the appellant. The conviction is only to be confirmed. 13. It is further contended before me by the counsel on State Brief that the appellant has been sentenced by the court below to undergo rigorous imprisonment for a term of three years and that the term of rigorous imprisonment so imposed is excessive and deserves to be reduced in the circumstances of the case, though the fine imposed being the minimum prescribed by the Statute cannot legally be interfered with. It is true that in the circumstances of the case, the punishment awarded to the appellant is harsh and the substantive term of imprisonment awarded to the appellant deserves to be reduced. CRA 1026/07 15 In the result, while confirming the conviction of the appellant for offence under Section 55(a) of the Abkari Act read with Section 8(1) and (2) thereof, I reduce the substantive term of imprisonment awarded to the appellant to 1½ years, maintaining, however, the sentence of fine and the default sentence imposed. It is seen from the tabular statement given in the judgment that the appellant was apprehended on 17.8.1999 and was released on bail on 15.9.1999. But, the nominal roll forwarded from the Prison shows the date of admission as 10.9.2005. The Superintendent of Central Prison, Thiruvananthapuram shall verify the correctness of the date so mentioned, as the conviction and the sentence was being passed against the appellant only on 16.5.2007 and it does not appear from the judgment that he was in custody from 10.9.2005. However, it is made clear that in the event of the appellant having already undergone the substantive term of imprisonment as reduced above as also the sentence in default of payment of CRA 1026/07 16 fine, the Superintendent of Central Prison concerned shall forthwith release him, if at all his detention is not required to be had in connection with any other case. Forward a copy of this judgment to the appellant through the Superintendent of Central Prison, Thiruvananthapuram. 28th January, 2008 (K.P.Balachandran, Judge) tkv CRA 1026/07 17 K.P.Balachandran, J. --------------------- Crl.A.No.1026 of 2007 --------------------- JUDGMENT 28th January, 2008