IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 13TH OCTOBER 2008 / 21ST ASWINA 1930 Crl.Rev.Pet.No. 804 of 2008() ----------------------------- CRA.52/2006 of ADDL. SESSIONS COURT (ADHOC)-II, KALPETTA SC.253/2000 of ASSISTANT SESSIONS COURT, SULTHAN BATHERY .................... REVN. PETITIONERS/APPELLANTS/ACCUSED: --------------------------------------- 1. SHAJI O.S., S/O. SIVARAMAN, OLIYAKATHIL VEEDU, MANALVAYAL P.O., KALLONNIKUNNU, IRULAM. 2. M.T.BINEESH, S/O. THANKAPPAN, MUDUKKUMPURATH VEEDU, KALLONNIKUNNU, IRULAM. 3. M.R.PRAKASH, S/O. RAGHAVAN, MANGATTUNHALIL VEEDU, AMMAVANMUKKU, PULPALLY AMSOM. BY ADV. SRI.LALGI P.THOMAS RESPONDENT/ COMPLAINANT: -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZER THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 804 OF 2008 ------------------------------------------ Dated this the 13th day of October, 2008 O R D E R The three accused who were concurrently convicted and sentenced for the offence under section 55(a) of Abkari Act are the petitioners. They were convicted and sentenced to rigorous imprisonment for two years each and a fine of Rs.1,00,000/-, and in default simple imprisonment for six months by Assistant Sessions Judge, Sultan Bathery in SC 253 of 2000. Though conviction and sentence were challenged before Sessions Court, Kalpetta in Crl.Appeal 52 of 2006, learned Sessions Judge on reappreciation of evidence confirmed the conviction and sentence. It is challenged in this revision petition filed under section 397 read with section 401 of Code of Criminal Procedure. 2. Learned counsel appearing for petitioners and learned public prosecutor were heard. 3. The argument of the learned counsel appearing for petitioners is that Courts below did not properly appreciate the evidence and appreciation of evidence was perverse. It was CRRP 804/08 2 argued that when the independent witnesses examined by the prosecution turned hostile, Courts below were not justified on relying on the evidence of PW1, the Circle Inspector of Police, especially when evidence of PW5 the RC owner of the autorikshaw establish that it was the son of PW5 who was entrusted with the autorikshaw and not third petitioner who was allegedly driving the autorikshaw and therefore conviction of the petitioners is illegal and unsustainable. The learned counsel also argued that the seizure was on 5.4.2000 and seized articles were produced before the learned Magistrate only on 7.4.2000 and the delay was not properly explained. It was further argued that PW1 did not take proper samples and only three packets out of 394 packets were opened for the purpose of preparing samples and no random sample was prepared and hence Courts below were not justified in accepting the chemical analysis report to find the guilt. Learned counsel finally argued that in any case considering the age of the petitioners, sentence of petitioners for two years is excessive and it is to be modified. 4. Prosecution case was that on 5.4.2000 PW1, the Circle Inspector, got reliable information at about 3.30 p.m. that three persons are proceeding from Pulpally with packets of CRRP 804/08 3 arrack in autorikshaw KL-12A/5914. Therefore along with Head Constable and other Constables, PW1 proceeded to Pulpally. On getting information that the autorikshaw had proceeded towards Ariapally area, they reached there. On getting information that autorikshaw had gone towards Kenichira, police party proceeded to Kenichira and near Kalluvayal School they found the autorikshaw being driven by the third petitioner. He tried to take the autorikshaw away. PW1 along with the police party chased the autorikshaw and got it stopped in front of the house of one Edapurathu Mathew and found that petitioners 1 and 2 are the passengers and MO4 gunny bag containing 394 sealed packets along with six empty covers was being carried in the autorikshaw. PW1 questioned them. Finding that it is arrack transported from Karnataka State, PW1 prepared Ext.P4 seizure mahazar and seized MO1 to 3 packets along with gunny bag. In the presence of PWs 2 and 3, PW1 opened three of the 394 packets and took samples in three bottles and got it signed by witnesses and accused. After arresting the petitioners, PW1 proceeded to the police station and prepared Ext.P5 F.I.R. and registered the case. PW1 entrusted the seized articles to PW6 the Sub Inspector of police and he produced them before CRRP 804/08 4 Judicial First Class Magistrate, Sulthan Bathery after preparing Ext.P7 list of property. Magistrate received items 1, 3 and 4 therein and returned 391 sealed packets for proper custody to the Sub Inspector of police, Kenichira. On Ext.P8 forwarding note, one of the sample bottles was forwarded to the Chemical Examination Laboratory, Thiruvananthapuram and Ext.P9 report was obtained showing that the sample of the liquid contained 34.20% of Ethyl Alcohol. After completing the investigation, charge was laid, which was committed to Sessions Court, Sulthan Bathery. Petitioners pleaded not guilty when charge for the offence under section 55(a) of Abkari Act was framed, read over and explained to them. Prosecution examined 7 witnesses and marked 9 exhibits and identified 4 material objects. Though petitioners were called upon to adduce evidence, they did not adduce any evidence. Learned Assistant Sessions Judge on appreciation of the evidence held that evidence of PW1 establish that third petitioner was driving autorikshaw KL-12A/5914 from Pulpally with MOs 1 to 3 packets enclosed in MO4 gunny bag along with petitioners 1 and 2 as the passengers on 5.4.2000 and on getting information, PW1 along with police party chased the autorikshaw and prepared Ext.P4 seizure mahazar, seized CRRP 804/08 5 MOs 1 to 4 and also arrested the petitioners. It was found that respective sample was prepared by PW1 in the presence of the petitioners and witnesses and Ext.P9 report establish that the packets contained Ethyl Alcohol and the sealed packets were procured from Karnataka and were being transported to Kerala and they thereby committed the offence under section 55(a) of Abkari Act. Learned Sessions Judge in appeal on reappreciation of the evidence confirmed the findings. Though learned counsel vehemently argued that evidence was not properly appreciated, on going through the entire evidence, I cannot agree with the argument. There is no reason to disbelieve the evidence of PW1 much less for the reason that PWs 2 and 3 the independent witnesses turned hostile. There is no presumption or rule or law that evidence of a police officer is to be disbelieved or is to be appreciated with suspicion. In spite of lengthy cross- examination, nothing was brought out to disbelieve the evidence of PW1. As rightly found by the Courts below, evidence establish that autorikshaw KL-12A/5914 was being driven by third petitioner on 5.4.2000 from Pulpally with petitioners 1 and 2 as passengers along with MO4 gunny bag containing MOs 1 to 3 packets, out of which six packets were empty. The evidence CRRP 804/08 6 also establish that in the presence of the petitioners and independent witnesses, PW1 opened three of the 394 sealed packets and prepared three samples and after preparing Ext.P4 seizure mahazar proceeded to the police station and prepared F.I.R. and registered the case and entrusted the matter for investigation to PW6. Though the articles were produced before Magistrate only on 7.4.2000 and there was a delay of one day, seizure was only at 4.00 p.m. on 5.4.2000, the delay was properly explained by PW1. There is no reason to suspect any foul play as canvassed by the learned counsel appearing for petitioners. Though it was argued that evidence of PW5, RC owner, establish that the vehicle was not entrusted to third petitioner but to the son of PW5, PW5 has no personal knowledge as to who was driving the autorikshaw at about 3-4 p.m. on 5.4.2000. Even if evidence of PW5 is to be accepted, it only shows that he had entrusted the vehicle to his son. When PW1 was cross-examined or PW2 and 3 were examined, there was no case that it was not the third petitioner who was driving the autorikshaw. Even when questioned under section 313 of Cr.P.C., third petitioner has no case that he was not the driver of the autorikshaw on that day or that he was unaware of MO4 CRRP 804/08 7 gunny bag or the contents of the gunny bag which was being carried by other petitioners as passengers of the autorikshaw. In the absence of such a case it can be only taken that third petitioner was carrying petitioners 1 and 2 with the knowledge that MO4 gunny bag contained the packets of arrack procured from Karnataka. It is more so because evidence of PW1 establish that when even PW1 wanted the autorikshaw to be stopped, he tried to escape and the autorikshaw was stopped after chasing. In such circumstances, even if the evidence is reappreciated, there is no reason to interfere with the findings of the Courts below. The conviction of the petitioners for offence under section 55(a) of Abkari Act is perfectly legal and correct and warrants no interference. 5. The sentence provided for the offence under section 55(a) of Abkari Act is ten years and fine which shall not be less than Rs.1 lakh. The learned Assistant Sessions Judge sentenced petitioners to rigorous imprisonment for a period of two years each in addition to the minimum of fine of Rs.1 lakh as provided under section 55(a) of Abkari Act. Argument of the learned counsel is that petitioners 1 and 2 are aged 36 and 34 and third petitioner is only aged 24 years and they were not involved in CRRP 804/08 8 any other offence of this nature and in such circumstances sentence may be reduced. Learned public prosecutor submitted that there is no material to show that petitioners were involved in an offence of this nature earlier to the incident. In such circumstances interest of justice will be met if the substantive sentence is reduced to rigorous imprisonment for one year each and a fine of Rs.1,50,000/- each and in default, simple imprisonment for six months each. Revision is partly allowed. Conviction of the petitioners for the offence under section 55(a) of Abkari Act is confirmed. The sentence is modified. The petitioners are sentenced to rigorous imprisonment for one year each and a fine of Rs.1,50,000/- each and in default simple imprisonment for six months each. The Assistant Sessions Judge, Sulthan Bathery is directed to execute the sentence. M. SASIDHARAN NAMBIAR, JUDGE Okb/-