IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 CRL.A.No. 2142 of 2009(C) ------------------------- SC.840/2007 of ADDL. SESSIONS COURT (ADHOC), FAST TRACK – II, THRISSUR .................... APPELLANT:- -------------- VELAPPAN, S/O.PAZHANIYAPPAN, C.NO.5934, CENTRAL PRISON, KANNUR. BY ADV. A.ABDUL JALEEL [STATE BRIEF] RESPONDENT:- ------------------ STATE OF KERALA. ADV. MR. B. JAYASOORYA, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. ------------------------------------------------------------- Crl. A. No. 2142 of 2009 ------------------------------------------------------------ Dated this the 23rd day of November, 2009. JUDGMENT In this appeal preferred from the Central Prison, Kannur, the appellant (Velappan), who was the accused in S.C. No. 840 of 2007 on the file of the Additional Sessions Court (Adhoc), Fast Track - II, Thrissur, challenges the conviction entered and the sentence passed against him by that court for an offence punishable under Section 8(2) of the Abkari Act. 2. The case of the prosecution as unravelled by the oral and documentary evidence in the case is the following:- On 22.03.2005, PW2 who was the Excise Inspector, Pazhayannur Range, was on patrol duty in his jeep along with an excise party which included PW3, the preventive officer. The jeep of the excise party was proceeding from the east-west along the main road situated to the south of the Weaver's Co-Operative Society No. H83. When the excise party reached Kaniyarkode village in Eravathody desom, they came across the appellant carrying MO1 jerry can having a capacity of 10 litres. Finding the appellant suspicious, he was restrained and the jerry can in Crl.A. No. 2142 of 2009 : 2 : his possession was examined to find that it was containing 5 litres of illicitly distilled arrack. The appellant was arrested and a sample of 180 ml. was drawn from MO1 can and the sample as well as the balance quantity were seized under Ext.P5 seizure mahazar to which PW4, an independent witness affixed his signature besides PWs 2 and 3. The appellant along with the seizure documents and the properties were taken to the Pazhayannur Excise Range Office from where PW2 prepared Ext.P6 crime and occurrence report and registered the case as CR No. 8 of 2005. The properties including MO1 can and the sealed sample bottle, were produced before the Judicial First Class Magistrate, Wadakkanchery on the same day itself and were assigned the number PI 127/05 as revealed by Ext.P7 property list. During the course of investigation, PW2 filed Ext.P9 forwarding note requesting the Magistrate to send the sample bottle to the chemical examiner for analysis. PW2 also prepared Ext.P10 scene mahazar. He gave a requisition to the village officer (PW1) to prepare a scene plan. The said request was complied with and Ext. P1 scene plan was prepared by PW1, the village officer. The Magistrate complied with Ext.P9 forwarding note and the sample was forwarded to the Crl.A. No. 2142 of 2009 : 3 : Government Chemical Examiner for analysis. Ext.P11 is the certificate of chemical analysis which shows that the sample involved in C.R. No. 8/05 of Pazhayannur Excise Range was despatched to the Chemical examiner by the Judicial First Class Magistrate, Wadakkanchery as per reference letter No. P.I. 127/05 dated 15.04.2005 and that the sample was received with its seals in tact. After the analysis, the sample was found to contain 33.38% by volume of ethyl alcohol. After the conclusion of investigation, PW2 himself filed the charge sheet before the court. 3. I heard Adv. Shri. Abdul Jaleel, the learned counsel who defended the appellant on State Brief and the learned Public Prosecutor. 4. The learned counsel for the appellant made the following submissions before me in support of the appeal:- There are several contradictions and omissions in the testimony of PWs 2 and 3. PW4, the independent witness to Ext.P5 seizure mahazar did not support the prosecution. The arrest, seizure, registration of crime, investigation and charge sheet were all done by PW2 himself. He has not taken the signatures of two respectable inhabitants of the locality. PW4 is Crl.A. No. 2142 of 2009 : 4 : not a local inhabitant and he has turned unfriendly to the prosecution. The Thondi Section Clerk who was in charge of the properties produced before the Magistrate, has not been examined to prove that it was the very same sample which was seized on 22.03.2005 which eventually found its way into the hands of the chemical examiner. The conviction entered and the sentence passed against the appellant overlooking the above vital aspects cannot be sustained. 5. I am afraid that I cannot agree with the above submissions. It is true that PW4, the independent witness to Ext.P5 seizure mahazar has turned disloyal to the prosecution. But that does not necessarily mean that the prosecution case is false. Courts are not unfamiliar with such witnesses who turn hostile to the prosecution during trial. But if the testimony of the detecting officer is inspiring and free from blemishes, the conviction can be based solely on the testimony of such officer despite the hostility shown by the independent mahazar witness. (See Kuttappan v. State of Kerala – 1981 KLT SN 9 & Suresh v. State of Kerala – 1995 (1) KLT 636) 6. The credible testimony of PWs 2 and 3 would go to show that the excise party came across the appellant walking along Crl.A. No. 2142 of 2009 : 5 : the road with MO1 jerry can in his hand and seeing the excise party he became nervous. He was soon restrained and the contents of MO1 found to be illicit arrack measuring 5 litres. PW2 drew a sample of 180 ml from the bulk quantity and the sample as well as the remaining bulk quantity were all produced before the Judicial First Class Magistrate, Wadakkanchery on the same day as revealed by Ext.P7 property list. The request made by PW2 as per Ext.P9 forwarding note was complied with and the sample was despatched to the chemical examiner. Ext.P11 report of chemical analysis shows that 180 ml. of sample involved in crime No. 8 of 2005 of Pazhayannur Excise Range was received from the Magistrate as per covering letter No. P.I. 127/05 dated 15.04.2005. The number P.I. 127/05 indicates the very same number which was assigned to the properties when they were produced before the Magistrate as per Ext.P7 property list on 22.03.2005. That apart, the covering letter of the Magistrate had made mention of Crime No. 8 of 2005 of Pazhayannur Excise Range. These are sufficient to identify the property. Hence, the non-examination of the Thondi Section Clerk cannot be held to be fatal to the prosecution. Crl.A. No. 2142 of 2009 : 6 : 7. Merely because PW2 effected arrest, search, seizure and investigation and laid the charge sheet, it does not follow that his action is to be frowned upon with suspicion particularly when no sort of ill-motive has been attributed to PW2 so as to infer that he was falsely implicating the appellant. 8. The contention that the local inhabitants were not secured for affixing signature for the mahazar, is also without any merit. PW2 could only get the signatures of those persons who assembled at the spot during the time of search and seizure. PW4 was one such person. Hence, the criticism in this behalf is devoid of any merit. 9. After an anxious re-appraisal of the oral and documentary evidence in the case, I do not find any infirmity in the prosecution case. The conviction has rightly been entered against the appellant and the same is confirmed. 10. What now survives for consideration is the legality and the extent of the sentence imposed on the appellant. Except a statement by the Public Prosecutor before the court below that the appellant is a frequent offender of such crime and that he is undergoing conviction in one case, there was no charge framed against him for such previous conviction or any admission made Crl.A. No. 2142 of 2009 : 7 : by the appellant in that behalf. Hence the court below was not justified in proceeding as if the appellant is a habitual offender and therefore, I am of the view that rigorous incarceration for a period of two years and the fine as imposed will meet the ends of justice. Accordingly, for his conviction under Section 8(2) of the Abkari Act, the appellant is sentenced to simple imprisonment for two years and to pay a fine of Rs.one lakh and on default to pay the fine, he shall suffer simple imprisonment for four months. In the result, this appeal is disposed of confirming the conviction entered but modifying the sentence as above. Dated this the 23rd day of November, 2009. V. RAMKUMAR, JUDGE. rv Crl.A. No. 2142 of 2009 : 8 : V. RAMKUMAR, J. ------------------------------------ Crl. Appeal No. 2142 of 2009 ---------------------------------------- 23rd day of November, 2009. JUDGMENT Crl.A. No. 2142 of 2009 : 9 :