IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 8TH DECEMBER, 2011 / 17TH AGRAHAYANA, 1933 CRL.A.No. 1458 of 2009 ------------------------------- (AGAINST THE ORDER IN SC.288/2008 of ADDL. DISTRICT AND SESSIONS COURT (ADHOC), FAST TRACK COURT-I, PATHANAMTHITTA ) .................... APPELLANT(S): ACCUSED NO.1 --------------------------------------------- SURESH KUMAR, AGED 44 YEARS, S/O.BHASKARAN NAIR, PANDALATHUPUTHEN VEEDU, VAZHAMUTTOM, THAZHOOR KADAVU, OMALLUR VILLAGE. BY ADV. SRI.M.T.SURESHKUMAR SRI.V.V.RAJA RESPONDENT(S): COMPLAINANT ----------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.T.Y.LALIZA. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08/12/2011, ALONG WITH CRL.A.NO.2175 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.Nos.1458 & 2175 of 2009 ---------------------------------------- Dated this the 8th day of December, 2011 J U D G M E N T As the above two appeals arise out of same judgment of the trial court and the question of facts and law involved are same, these appeals are heard together and will be disposed of by this common judgment. 2. By judgment dated 1.7.2009 in S.C.No.288 of 2008 of the court of Additional District and Sessions Judge (ADHOC), Fast Track Court-I, Pathanamthitta, convicted the accused, who are two in numbers for the offence under Sections 8(1) and (2) of the Kerala Abkari Act. The accused therein are the two appellants herein, who preferred separate appeals challenging their conviction and sentence. Thus, Crl.A.No.1458 of 2009 is preferred by the first accused whereas Crl.A.No.2175 of 2009 is preferred by the second accused. 3. The case of the prosecution is that on 15.6.2006 at 5 p.m., the first accused had been seen with a black can having capacity of 10 Crl.A.Nos.1458 & 2175 of 2009 :-2-: litres containing full of arrack on the side of the canal near the property of one Puravathu Bhaskaran Nair at Thazhoor Kadavu and second accused was seen with a 10 litre capacity can containing 2½ litres of arrack and a glass and he was selling arrack and thus, according to the prosecution, the accused committed the offence punishable under Section 8(1) and (2) of the Abkari Act. On the basis of the above allegation, Crime No.530 of 2006 was registered in the Pathanamthitta Police Station for the said offences and after investigation, report was filed based upon which Sessions Case No.288 of 2008 was instituted and during the trial of the case, a formal charge was framed against the accused for the offences punishable under Sections 8(1) and (2) of the Abkari Act and when the same was read over and explained to the accused, they denied the same and pleaded not guilty. Consequently, the prosecution adduced its evidence consisting of the oral evidence of Pws.1 to 3 and the documentary evidence Exts.P1 to P7. No defence evidence either oral Crl.A.Nos.1458 & 2175 of 2009 :-3-: or documentary was adduced. The trial court, towards the end of the trial, found that the prosecution has succeeded in proving that the accused was found in possession of arrack as alleged by the prosecution. Accordingly the accused are convicted under Sections 8 (1) and (2) of the Abkari Act and on such conviction, the accused are sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 1 lakh in default, they are directed to undergo rigorous imprisonment for six months each. Set off is allowed in favour of the first accused from 29.7.2006 to 9.8.2006 and in the case of second accused, from 18.6.2006 to 9.8.2006. It is the above conviction and sentence challenged by the accused by filing the above two separate appeals. 4. The first accused is challenging his conviction and sentence by filing an appeal by engaging a counsel of his own choice, whereas the second accused is undergoing imprisonment in pursuance of the impugned judgment, and thus, he preferred the appeal from the jail Crl.A.Nos.1458 & 2175 of 2009 :-4-: and on receiving the same, as ordered by this Court, the Registry has appointed Advocate Sri.G.Gopakumar from the panel of State Brief to prosecute the appeal for and on behalf of the said appellant. Thus, I have heard Sri.M.T. Suresh Kumar, learned counsel appearing for the appellant in Crl.A.No.1458 of 2009/the first accused and Advocate Sri.G.Gopakumar, learned counsel for the appellant in Crl.A.No.2175 of 2009/the second accused. 5. As I indicated earlier, in order to prove the prosecution allegation, the prosecution has examined Pws.1 to 3 among which PW1 turned hostile. According to the prosecution, PW1 is the person who was found along with first and second accused, who is a consumer. When PW1 was examined, he had deposed before the court that he did not put his signature in any of the document. Consequently, PW1 was declared as hostile and he was cross- examined by the prosecution. PW2 is a Police Constable, who accompanied PW3 at the time of the seizure of the contraband article. Crl.A.Nos.1458 & 2175 of 2009 :-5-: According to him, when himself was on patrol duty along with PW3, the S.I.of Police, he was told by PW3 that he had received information about the sale of illicit arrack of Vallikode Suresh by Vasukuttan and thus, according to PW2, PW3 and himself reached at the place of occurrence and on reaching there, he had seen one person holding a can having 10 litre capacity and pouring some liquid in a glass to some other person and also seen another person concealing the can, beneath the dry branches of the rubber tree, having similar liquid and on seeing the same, the S.I. and party including himself though chased the accused, on seeing them, they took heels from the place of occurrence. Subsequently, the cans were recovered and it was realised that the contents of cans were identified as illicit arrack, through smelling and tasting. He had deposed that PW3 had prepared Ext.P1 mahazar recording the seizure of the contraband article and drawing of the samples. PW2 has also identified the material objects and also the accused during his examination in the court. Crl.A.Nos.1458 & 2175 of 2009 :-6-: 6. When PW3 was examined, he had also deposed in terms of the prosecution allegation and in par with the deposition of PW2. I am not proposed to repeat the deposition of PW3 since I have already referred to the deposition of PW2. When PW3 was examined, the prosecution has got marked Ext.P2 FIR, Ext.P3 property list, Ext.P4 forwarding note, Ext.P5 report showing the correct address of the accused, Ext.P6 remand application. Ext.P7 chemical analysis report is also marked as prosecution document. These are the evidence and materials which formed the basis for the findings and conviction recorded by the learned Judge of the trial court. 7. Both the counsel for the appellants are unanimous in their contentions and attack against the prosecution case as well as the judgment of the trial court. The main point raised by the counsel is to the effect that there is no independent evidence to corroborate the evidence of the official witnesses viz., Pws.2 and 3 and therefore, according to the counsel, the trial court is wrong in entering into a Crl.A.Nos.1458 & 2175 of 2009 :-7-: finding and conviction against the appellants, purely on the basis of the interested versions of the official witnesses. Another contention taken by the counsel is to the effect that even according to the prosecution, the seizure is effected by PW3, who himself conducted the investigation and therefore, the appellants/accused are highly prejudiced. In support of the contentions against the alleged seizure, it is pointed out that even though the prosecution has got a case that MO2 contained 10 litres of illicit arrack at the time of the seizure, the total quantity of the arrack found in MO2 can is only 8.5 litres and therefore, the prosecution case cannot be believed. It is also the contention of the learned counsel that though PW3 has got information including the details of the offences and the names of the accused, no F.I.R. was registered and no intimation was sent to the superior officers connected with the proposed search or the investigation. It is also contended by the counsel that going by the prosecution allegation itself and the evidence adduced by it, no court Crl.A.Nos.1458 & 2175 of 2009 :-8-: can come to a conclusion that the appellants were found in physical possession of the contraband articles especially when the appellants were not arrested from the spot or with the possession of the contraband articles. It is also the contention of the counsel that the evidence of Pws.2 and 3 are contradictory in several aspects including the time required to reach the spot, about the nature of the property from where the contraband articles were seized, etc. It is also contended that the sequence of the events and the timings given by the prosecution is not correct and acceptable as true because it is practically impossible to register a crime at 7.30 p.m. after effecting the seizure at 5.30 p.m. on the same day. It is also pointed out by the counsel that the prosecution evidence regarding the seizure and the connected proceedings adopted by Pws.3 and 2 cannot be believed. It is further pointed out that according to Pws.2 and 3, on seeing the police party, second accused ran away from the spot at the stage when he was pouring the arrack to the glass, if that be so, the further case of Crl.A.Nos.1458 & 2175 of 2009 :-9-: the prosecution that on opening MO1 can, they realised the liquid as 2½ litres, cannot be believed since if the MO1 can was in the opened position, no liquid will remain in the can. So according to the learned counsel, the appellants are entitled to get an acquittal. 8. On the other hand, the learned Public Prosecutor submitted that the seizure was effected on the basis of a formal information received by PW3 and the contemporary documents including Exts.P1 and P2 guarantee the correctness of the information and the seizure effected by Pws.3 and 2. It is pointed out by the learned Public Prosecutor that on the next day itself, the contraband articles as well as the samples were produced before the court as per Ext.P3 property list and submitted Ext.P4 forwarding note to send the samples for chemical analysis. According to the learned Public Prosecutor, regarding those procedural steps taken by the prosecution, the defence has no contentions. It is also the submission of the learned Public Prosecutor that though PW1 turned hostile, the evidence of PWs.2 and Crl.A.Nos.1458 & 2175 of 2009 :-10-: 3 remained intact and slight infirmities or contradictions pointed out by the learned counsel for the appellants are not sufficient to disbelieve the prosecution case. Thus, according to the learned Public Prosecutor, no interference is warranted. 9. I have carefully considered the arguments advanced by the learned counsel for the appellants and the learned Public Prosecutor. I have perused the judgment of the trial court and scrutinised the prosecution evidence including the testimony of Pws.1 to 3 and other documentary evidence. 10. In the light of the counter arguments advanced by counsel for the appellant and the learned Public Prosecutor, and in the light of the evidence and the materials on record, the question to be considered is whether the trial court is justified in its finding and convicting the appellants for the offences punishable under Sections 8(1) and 8(2) of the Act. I have already referred to the prosecution allegation and its evidence on record. According to PWs.2 and 3, while they were on Crl.A.Nos.1458 & 2175 of 2009 :-11-: patrol duty, PW3 received specific information regarding the sale of illicit arrack at the place of occurrence and pursuant to that information, they proceeded to that spot and consequently, they recovered Mos.1 and 2 and the contraband articles from the place of occurrence. It is true that the appellants/accused were managed to get rid of the arrest from the place. But, the proceedings adopted by PW3 is fully supported by the evidence of Pws.3 and 2 and the same is further corroborated by the contemporary document like Exts.P1 and P2. Though PW1 turned hostile, the evidence of Pws.2 and 3 remained intact and though they were subjected to lengthy cross- examination, nothing was brought on record to disbelieve them or discredit their evidence. The contradictions pointed out by the counsel for the appellants with respect to the time taken to reach the place of occurrence has not much consequence. When Pw2 said that ten minutes taken, PW3 said that they took only 3 to 4 minutes to reach at the spot. Both Pws.2 and 3 were examined in the court on 6th Crl.A.Nos.1458 & 2175 of 2009 :-12-: May 2009 whereas the seizure was effected on 15.6.2006, three years back and therefore, the minor variation with respect to the nature of the contraband articles seized or the surrounding property has no consequence, especially when the seizure is proved by a contemporary documentary evidence Ext.P1. According to PW3, the information was received at about 5 p.m. on 15.6.2006 when they were on patrol duty and seizure was effected at 5.30 p.m. on the same day. Ext.P2 F.I.R. was registered at about 7.30 p.m. on the same date. It is relevant to note that the distance between the place of occurrence and the Police Station is only 6 kilometres. If that be so, the contentions advanced by the counsel against the acceptance of Ext.P2 F.I.R and Ext.P1 mahazar are not sustainable, especially when no question was put to PW3 regarding those aspects. 11. Another contention raised by the counsel is to the effect that no recovery was effected from the physical possession of the appellants. The very case of the prosecution is that the Crl.A.Nos.1458 & 2175 of 2009 :-13-: appellants/accused ran away from the spot on seeing the police party and the appellants were got identified through PW1, who was found along with accused. The recovery of the contraband articles and another material are recorded in Ext.P1 mahazar and as such, the evidence of Pws.2 and 3 is in corroboration with the contemporary document Ext.P1. In this juncture, it is relevant to note that when Pws.2 and 3 were examined in the court, they have deposed and identified the person with reference to the overt act of each of the appellants. Absolutely, no cross-examination was conducted when Pws.2 and 3 were examined based on their evidence connected with the identity of accused. Therefore, even though the appellants/accused were not arrested from the place of occurrence, the contemporary documents and the substantial evidence of Pws.2 and 3 positively prove the role of the appellants and their connection with the commission of the offence. Therefore, the contention of the counsel on those grounds is not acceptable. Crl.A.Nos.1458 & 2175 of 2009 :-14-: 12. In the light of the above evidence and materials and discussion, I am of the view that the learned Judge of the trial court is fully justified in his finding in favour of the prosecution and convicting the appellants for the offence charged against them. Therefore, I confirm the conviction recorded by the trial court against the appellants. 13. With respect to the sentence, the counsel for the appellants submitted that a lenient view may be taken especially when considering the social background of the appellants and their age. I find some force in the above submission and considering the mitigating circumstances pointed out by the learned counsel for the appellants and the fact that the prosecution has no case that they are involved in similar case, the sentence imposed against the appellants requires reconsideration. Having regard to the facts and circumstances involved in the case and the mitigating circumstances indicted above, in modification of the sentence of imprisonment Crl.A.Nos.1458 & 2175 of 2009 :-15-: imposed against the appellants, the same is reduced and the appellants are directed to undergo nine months rigorous imprisonment and while confirming the sentence to pay fine of Rs.1 lakh imposed against the appellants, the default sentence is modified and reduced into three months simple imprisonment. Accordingly, the appellants are sentenced to undergo rigorous imprisonment for nine months and to pay fine of Rs.1 lakh, in default, they are directed to undergo rigorous imprisonment for a further period of three months. In the result, these appeals are dismissed confirming the conviction of the appellants under Sections 8(1) and (2) of the Abkari Act, but subject to the modification with respect to the sentence to the extent indicated above. The bail bond executed by the first accused, who is the appellant in Crl.A.No.1458 of 2009 is cancelled and he is directed to surrender before the trial court on or before 9.1.2012 to undergo the modified sentence and if there is any failure on the part of the appellant in appearing before the trial court to receive the modified Crl.A.Nos.1458 & 2175 of 2009 :-16-: sentence, the trial court is free to to take coercive steps to secure the presence of the said appellant and to execute the modified sentence. The Criminal Appeals are disposed of as above. V.K.MOHANAN, Judge MBS/ Crl.A.Nos.1458 & 2175 of 2009 :-17-: V.K.MOHANAN, J. CRL.A.Nos.1458 & 2175 OF 2009 JUDGMENT Dated:08.12.2011 Crl.A.Nos.1458 & 2175 of 2009 :-18-: