IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 CRL.A.No. 2450 of 2007() ------------------------ SC.1877/2001 of ADDL.SESSIONS COURT-TRIAL OF ABKARI ACT CASES,NEYYATTINKARA CP.50/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEYYATTINKARA .................... APPELLANT: APPELLANT: --------------------- RAJAN, C.NO.1829, CENTRAL PRISON, TRIVANDRUM. BY ADV. SRI. BIJU MARTIN [STATE BRIEF] SRI.BIJU MARTIN, STATE BRIEF RESPONDENTS: ------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.Appeal. No.2450 of 2007 ------------------------------------- Dated this the 19th day of June, 2008 JUDGMENT This appeal is preferred by the appellant who is undergoing imprisonment against the verdict of guilty, conviction and sentence imposed on him in a prosecution under Section 58 of the Kerala Abkari Act. 2. The crux of the allegations against the petitioner is that on 02.11.2000, he was found carrying /transporting 10 litres of arrack when an excise party led by PW4, of which PW3 was a member, intercepted him, effected seizure and arrested him. The contraband article in M.O 1 container was seized under Ext.P1. PWs 1 and 2 are the attestors to Ext.P1 seizure mahazar. PWs 3 and 4, as stated earlier, are the detecting officer and an officer who accompanied him. Ext.P2 is the arrest memo. Ext.P3 the occurrence report and Ext.P4 remand report and Ext.P5 the property list and Ext.P6 the chemical examiner’s report. Exts.P7 to P9 were wrongly marked in this case and they are not relevant to the controversy. Exts.P11 to P13 are the covering letter, sample seal and the forwarding note under which sample of the contraband article was forwarded to the chemical examiner to Crl.Appeal. No.2450 of 2007 2 secure Ext.P6 report. PW5 is the Investigating Officer and PW6 is the property clerk. Final report was filed by PW5 after completing the investigation. Cognizance was taken. Accused denied the charges after committal before the Additional Sessions Court. Thereupon the prosecution examined PWs 1 to 6 and proved Exts.P1 to P13. PWs 1 and 2 turned completely hostile to the prosecution. They did not even admit their signatures in Ext.P1. The petitioner examined DW1, a friend of his. He is a public activist. According to him, he had seen the arrest. But the arrest was at a different time and place. He was cross examined by the prosecution. 3. The court below considered all the relevant inputs and came to the conclusion that there is satisfactory evidence to come to a conclusion beyond doubt about the complicity of the petitioner. Accordingly, the learned Judge proceeded to pass the impugned judgment. 4. Before me the learned counsel for the appellant and the learned Public Prosecutor have advanced their arguments. The learned counsel for the appellant assails the verdict of guilty and conviction on the following grounds. i) The oral evidence of PWs 3 and 4 must have been discarded by the court below; Crl.Appeal. No.2450 of 2007 3 ii) At any rate, the sentence imposed is excessive; 5. The prosecution primarily relies on the oral evidence of PWs 3 and 4. The prosecution wanted to rely on the oral evidence of PWs 1 and 2 as also Ext.P1 seizure mahazar. But PWs 1 and 2 turned hostile to the prosecution completely. The prosecution was thus left with the oral evidence of PWs 3and 4 to establish the overt act alleged against the appellant. PWs 3 and 4 gave evidence about the incident proper. The learned counsel for the appellant submits that the oral evidence of PWs 3 and 4 should not have been accepted or acted upon inasmuch as they are interested. They have contradicted each other about the name of the place where from the arrest took place. Inherently on broad probabilities their evidence do not commend acceptance, contends counsel. 6. The challenge raised on the ground of interestedness does not at all appeal to me. There is no specific suggestion that PWs 3 and 4 had any motive, ill will or malice against the appellant. They are of course exercise officials. But the mere fact that they are excise officials cannot persuade the Court to approach the evidence with any undeserved doubt, distrust or suspicion. Hostility of PWs 1 and 2 is heavily relied on. That mere fact cannot also in any way justify an approach with doubt and Crl.Appeal. No.2450 of 2007 4 distrust against the oral evidence of PWs 3 and 4. They, it must be noted, are public officials whose duty it is to detect offences and bring the offenders to book. That duty, which the law enjoins on them, cannot persuade the Courts to approach their testimony with any unjustified suspicion. 7. The counsel submits that there is some incongruity about the name of the place proper. The place stated in Ext.P1 seizure mahazar does not tally with the oral evidence of PWs 3 about such place. The counsel further contends that there is a dispute as to whether the road at the place is Marayamuttam Aruvippuram or Marayamuttam Malakulangara road. The counsel then relies on the circumstances that in Ext.P4 the name of the accused has been described as Sasi though Rajan is his real name. The counsel also relies on the improbability of the version of the prosecution that the accused was carrying the contraband article for retail sale. He did not even have a glass/tumbler with him to effect such retail sales. The counsel submits that the investigation must be approached with doubt and reservation as Exts.P7 to P9 documents have been marked which have no relevance whatsoever with the case and long later realizing the folly Exts.P10 to 13 have been pressed into service. The counsel then points out that in Ext.P13 there is no sample seal at the Crl.Appeal. No.2450 of 2007 5 space shown. In Ext.P12 though there is a sample seal, there is no crime number noted there. For all these reasons the learned counsel for the appellant submits that the oral evidence of PWs 3 and 4 may be approached with due care and caution. Their evidence may be discarded and the accused may be given the benefit of doubt. He may be acquitted, it is prayed. 8. I am unable to accept any of these contentions. As already stated PWs 3 and 4 are public officials and they have tendered evidence on oath. There is no reason to disbelieve the testimony on inherent probabilities. Not even a semblance of suggestion is made that PWs 3 and 4 have any reason to depose falsely against the appellant. The fact that the name Sasi had crept into Ext.P4 remand report is irrelevant in as much we see that in the same document the appellant is described as Rajan, S/o.Jacob. In all other contemporaneous documents the name has been correctly recorded as Rajan, S/o.Jacob. The name of the accused happened to be incorrectly made in one place in the remand report. Though dissatisfied about the quality of the investigation, it cannot at any rate deliver any undue advantage to the accused. 9. The alleged inaccuracy in the description of the road does not at all generate any doubt in my mind as there is no Crl.Appeal. No.2450 of 2007 6 material whatsoever to show that the Marayamuttam Aruvippuram or Marayamuttam Malakulangara road are not one and the same road. Different description of end points may be made by persons while describing the road. There is not even a semblance of suggestion that Marayamuttam Aruvippuram or Marayamuttam Malakulangara roads are different roads and that the version of the two witnesses cannot simultaneously stand. Moreover, it is seen that in Ext.P1 seizure mahazar as also in the oral evidence of Pws 3 and 4 the scene is described with reference to an electric post which is specifically described in Ext.P1 and in the evidence of Pws 3 and 4. 10. That no tumbler was carried by the petitioner is of no crucial relevance. The accused was allegedly carrying the contraband article for retail sale eventually and not at the spot of detection. The fact that there was no tumbler available with the appellant does not also generate any doubt against the very case of the prosecution. 11. Exts.P11, 12 and 13 like Exts.P7, P8 and P9 together constitute a set of documents. Marking of Exts.P7 to P9 an obvious mistake only. Though in Ext.P11 there is a space for affixing the sample seal impression, it is not affixed there. But we find that Ext.P12 is accompanying Exts.P11 and P13 and Ext.P12 Crl.Appeal. No.2450 of 2007 7 is the specimen impression of the sample seal. In Ext.P12, of course, the crime number is not noted. Ext.P11 cannot be considered in isolation. It is part of one set of documents, ie. Exts.P11 to P13. They are sent together to the chemical examiner. There is no sample seal affixed against the column in Ext.P13; whereas in a separate paper, before the sample seal is sent as Ext.P12 along with Exts.P11 and P13. This circumstance does not also generate any reasonable doubt in my mind. 12. No other serious contentions are raised and I am satisfied that the court below committed no error in accepting and acting upon the oral evidence of Pws 3 and 4. 13. Finally it is contended that the sentence imposed is excessive. I find merit in that contention. The petitioner is not shown to have any criminal antecedents. He has been sentenced to undergo R.I for a period of 3 years and to pay a fine of Rs.1 lakh. In default he is sentenced to undergo R.I for a period of 6 months. The sentence of fine imposed is the minimum prescribed under statue. I am satisfied in the totality of circumstances that a lenient view can be taken and the sentence can be modified and reduced. Crl.Appeal. No.2450 of 2007 8 14. In the result: a) This Appeal is allowed in part; b) The impugned verdict of guilty and conviction of the appellant are upheld; c) The substantive sentence of imprisonment imposed on the appellant is reduced from R.I for a period of 3 years to R.I for a period of 1 year and the default sentence is reduced from R.I for a period of 6 months to R.I for a period of 3 months. The sentence of fine is upheld. 15. The court below shall take necessary steps to issue revised warrant of commitment forthwith. The Registry shall ensure that the records are sent to the learned Magistrate forthwith along with a copy of this judgment. (R.BASANT, JUDGE) rtr/-