IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 15TH OCTOBER 2010 / 23RD ASWINA 1932 Crl.Rev.Pet.No. 75 of 2006(D) ----------------------------- CRA.429/2004 of SESSIONS COURT, KOZHIKOE SC.235/2003 of I ADDL. ASSISTANT SESSIONS COURT, KOZHIKODE .................... REVN. PETITIONER: APPELLANT/ACCUSED: --------------------------------------- KANDAN, S/O. CHERIYAKKAN, AGED 57 YEARS, POOVARAMMAL HOUSE, PUTHUR AMSOM, KEDAYATHUR DESOM, KOZHIKODE DISTRICT. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENT(S): RESPONDENT/COMPLAINANT: -------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, EXCISE INSPECTOR, THAMARASSERY EXCISE RANGE). PUBLIC PROSECUTOR SRI V. TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 7/10/2010, THE COURT ON 15/10/2010 PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 75 OF 2006 ---------------------------------------- Dated the 15th day of October, 2010 ORDER This Crl.R.P is preferred challenging the judgment dated 8.6.2004 in S.C.No.235/2003 of the court of First Addl.Assistant Sessions Judge, Kozhikode and the judgment dated 14.12.2005 in Crl.A.No.429/2004 of the court of Sessions Judge, Kozhikode. As per the above judgments, the revision petitioner who is the sole accused in the above case stands convicted under section 55(a) of the Abakri Act and accordingly he is sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.one lakh and in default of payment of the fine amount, he is directed to undergo simple imprisonment for three months more. 2. The allegation against the revision petitioner is that at about 2.30 p.m. on 10.10.2000, the accused was found in transportation of illicit arrack of about 2.5 litres in a can through the panchayat road leading towards Crl.R.P.No.75/06 -:2:- Noonhikara from Varikuzhi and thereby committed the offence punishable under section 55(a) of the Abkari Act. With the above allegation, crime No.21/2000 was registered in the Thamarassery Exchange Range. After investigation, the case was charge sheeted before the court of Judicial First Class Magistrate -I, Thamarasery where the case was taken on file as C.P. No.22/2002 and after compliance of the necessary formalities, by order dated 19.12.2002, the case was committed to the court of Sessions, Kozhikode wherein the case was taken on file as S.C.No.235/2003 and subsequently made over to the trial Court for disposal. Thus, during the trial, PW1 to PW7 were examined and Exts.P1 to P7 were marked. M.O.1 was also identified and marked. When the accused was questioned under section 313 Cr.P.C., he denied all the incriminating circumstances and taken a defence of total denial. No evidence was adduced from the side of the defence. Finally, the trial Court found that the revision petitioner is guilty of the offence charged against him and accordingly, he is convicted thereunder and imposed the sentence as indicated Crl.R.P.No.75/06 -:3:- earlier. Challenging the above conviction and sentence, though the revision petitioner has preferred an appeal, the appellate court also confirmed the conviction and sentence and thereby dismissed the appeal. It is the above verdicts of the courts below and the conviction and sentence imposed against the revision petitioner are challenged in this revision Petition. 3. I have heard Sri V. N.Ramesan Nambisan, the learned counsel appearing for the revision petitioner and also Sri V.Tek Chand, the learned Public Prosecutor. I have perused the evidence and materials produced in this case and the judgments of the courts below. 4. The learned counsel for the revision petitioner on the strength of the decisions in Surendran v. Excise Inspector (2004(1) KLT 404); Mohanan v. State of Kerala (2007 (1) KLT 845) and Purushan v. State of Kerala (2002(2) KLT 661), submitted that the mere possession, even if the same is admitted for the argument sake, as proved, is not sufficient to attract Section 55(a) of the NDPS Act and unless it is proved that the possession was for the purpose of transporting Crl.R.P.No.75/06 -:4:- the contraband article, Section 55(a) will not be attracted. It is also the submission of the learned counsel that the entire search was conducted in gross violation of the procedure and safe guard prescribed by the Act and Rules, especially , Section 31 of the Act. It is the further submission of the learned counsel that to prove the prosecution allegation, absolutely there is no independent evidence and no conviction can be imposed against the revision petitioner based upon the interested evidence of the official witnesses. It is also the submission of the counsel that the official witnesses failed to follow the provisions contained in the Excise Manual in the matter of collecting samples and the signature of the accused was not obtained on the samples. It is also the submission of the learned counsel that the revision petitioner is now at the age of 64 and there is no antecedents of any criminal background and also submitted that a lenient approach may be taken in the matter of sentence in case this court is not inclined to acquit the revision petitioner. 5. On the other hand, resisting the grounds raised by Crl.R.P.No.75/06 -:5:- the revision petitioner and the arguments advanced by the counsel for the petitioner, the learned Public Prosecutor submitted that the specific case of the prosecution is that the revision petitioner was found in possession of the contraband article while he was transporting the same and it was not a mere possession and therefore, the authorities cited by the learned counsel has no relevance in the present case. It is also the submission of the learned counsel that though the independent witnesses turned hostile, there is nothing wrong in acting upon the official witnesses since their evidence remains in tact and nothing is brought on record to disbelieve their evidence. Thus according to the learned Public Prosecutor, no interference is called for. 6. I have carefully considered the arguments advanced by both the counsel for the revision petitioner as well as the learned Public Prosecutor. Going by the charge and the evidence of prosecution witnesses, including the documentary evidence, it can be seen that the specific allegation of the prosecution against the revision petitioner is that he was found Crl.R.P.No.75/06 -:6:- in possession of the contraband article while the same was transporting in a can held by him. PW1 is the Preventive Officer attached to the Excise Range Office, Thamarassery, who detected the crime. According to PW1, while himself and his party were on patrol duty, found the appellant coming from the opposite direction, carrying the plastic can, and as the revision petitioner tried to conceal the plastic can and tried to return, he was intercepted and questioned and on examination of the plastic can, it was revealed that the same contained illicit arrack and the plastic can was having a capacity of 2.5 litres. Ext.P1 is the mahazar prepared for the search and seizure of the contraband article and Ext.P2 is the arrest memo. PW2, who was one among the party and participated in the search and seizure, deposed before the court in terms of the evidence of PW1. According to PWs 1 and 2, after the seizure and arrest , they returned to the excise office , Thamarassery and handed over the accused as well as the material objects and Ext.P1 mahazar and Ext.P2 arrest memo to the Excise Inspector and thereupon PW-7, the Excise Crl.R.P.No.75/06 -:7:- Inspector prepared Ext.P4 crime report, Ext.P5 property list, and Ext.P6 forwarding note. Thereafter, the accused and the materials were produced before the court concerned. In this juncture, it is relevant to note that though PW3 and PW4, the independent witnesses, were examined to prove the seizure, they turned hostile, but they admitted their signature, though not in terms of the prosecution case. Thus, it can be seen that even though the independent witnesses turned hostile, the evidence of the official witnesses , especially, PWs 1 and 2, who are the witnesses involved in the seizure and arrest of the accused, their evidence are trustworthy and remained intact even though they were subjected to lengthy cross examination. Thus it can be seen that this is not a case where there is any failure on the part of the official witnesses in obtaining the services of the independent person at the time of seizure and arrest and no independent witness was cited and examined during the trial. When the evidence of PWs 1 and 2 supported by Ext.P1 mahazar, which is a contemporary document, and in the absence of any room for Crl.R.P.No.75/06 -:8:- manipulation of the records and when the accused and the contraband article were produced before the court without delay though PWs 3 and 4 turned hostile towards the prosecution, the same will not affect the credibility and correctness of the prosecution case. Thus, according to me, the prosecution has established the seizure of the contraband article from the possession of the revision petitioner when he was transporting the same and his arrest connected with the seizure of the contraband article. 7. Another contention raised by the counsel is to the effect that there is violation of Section 31 of the Abkari Act and PW1 has miserably failed to comply with the information received by him and to inform the same to the superior officer. The above contention of the learned counsel is not sustainable in the light of the facts and circumstances involved in the case. In the present case, the accused was arrested and the contraband article was seized while PW1 and party were on patrol duty, whereas Section 31 of the Act contemplates powers of certain abkari and police officers to Crl.R.P.No.75/06 -:9:- search house etc without warrant. Therefore, the above contention of the learned counsel is liable to be rejected. Another point raised by the learned counsel is to the effect that absolutely there is no evidence to substantiate the allegation of the prosecution regarding the search and in support of the above submission, the learned counsel pointed out that PWs 3 and 4, the independent witnesses, turned hostile and it is also pointed out that the signature of the accused is not seen on the label of the sample collected by the prosecution witnesses and hence the same is against the direction contained in the Excise Manuel. 8. The above contention is not sustainable in the particular facts and circumstances involved in the case. As I indicated earlier, immediately, after the seizure of the contraband article and arrest of the accused, PW1 and party returned to the excise office and the same was reported to PW7 who in turn prepared Ext.P4 crime report, Ext.P5 property list and Ext.P6 forwarding note. Thereafter, PW7 produced the accused before the committal court along with the contraband Crl.R.P.No.75/06 -:10:- article and the documents. No cross examination was conducted on behalf of the accused either on PWs 1 , 2 or 7 to discredit their evidence and to show that any prejudice is caused to the revision petitioner. After producing the accused and the contraband article before PW7, who was in control over the materials as well as the accused and after preparation of necessary papers he produced the accused as well as the contraband article before the court below and nothing is brought on record to show any opportunity for manipulation of the records and the contraband articles. Ext.P7 chemical analysis report categorically proved the nature of the substances detected and produced before the court. PW6 who is the excise Inspector, Thalassery undertook the investigation during which he got Ext.P7 signed and prepared through PW5 the Village Officer. So the evidence and materials on record is sufficient to reject the contentions of the learned counsel against the search and seizure. 9. In the light of the above facts and circumstances, I find no illegality or irregularity regarding the concurrent Crl.R.P.No.75/06 -:11:- findings arrived on by the trial court as well as the lower appellate court . Therefore, the conviction recorded by the courts below is confirmed. 10. The learned counsel for the revision petitioner submitted that the revision petitioner is now at the age of 64 and he had already undergone 56 days imprisonment as a pretrial prisoner and considering the above facts, a lenient approach may be taken with respect to the sentence. Having regard to the facts and circumstances involved in this case, especially, when the quantity involved is 2.5 littres of illicit arrack and when there is no criminal antecedents for the petitioner and he is now an age old person, I am of the view that the substantial sentence can be modified and reduced to three months imprisonment and while maintaining the sentence of fine, the default sentence can also be modified. In the result, this Crl.R.P. is disposed of confirming the conviction of the revision petitioner under section 55(a) of the Abkari Act as recorded by the courts below. Accordingly, the sentence of imprisonment is modified and reduced to simple Crl.R.P.No.75/06 -:12:- imprisonment for three months and confirming the sentence of fine of Rs.1,00,000/- (Rs.one lakh only), the default sentence imposed by the courts below is reduced to two months simple imprisonment . Set off is allowed under section 428 of Cr.P.C. Registry is directed to forward this order and back records to the trial court for executing the revised sentence. V.K.MOHANAN, JUDGE kvm/- Crl.R.P.No.75/06 -:13:-