IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931 CRL.A.No. 463 of 2003() ----------------------- SC.217/2000 OF THE ADDL.DIST & SESSIONS COURT FAST TRACK (ADHOC) II, KOZHIKODE. .................... APPELLANT(S): -------------- BABY KURUVILLA, AGED 49 S/O.KURUVILLA,POTHANIKOTTU (H),PANJAL, THALAPPILLI TALUK, THRISSUR DISTRIC, BY ADV. SRI.T.D.ROBIN SRI.K.S.ANIL RESPONDENT(S): --------------- STATE OF KERALA-REPRESENTED BY PREVENTIVE OFFICER, EXCISE CIRCLE OFFICE, VADAKARA (CRIME NO.63/97 OF THE VADAKARA RANGE) REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI C.S. HRITHIK. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/02/2010, THE COURT ON THE SAME DY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl. A No. 463 of 2003 ---------------------------------------- Dated 16th Day of February, 2010 ORDER The sole accused in S.C.No.217/2000 of the Court of Addl.District & Sessions Judge, Fast Track (Adhoc-II), Kozhikode, is the appellant. The Trial court found that the accused is guilty of the offence under section 55(a) of the Abkari Act and Rule 9 of the Foreign Liquor Rules and accordingly, he is sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.1 lakh. (one lakh only).The default sentence is fixed as simple imprisonment of 6 months. It is the above conviction and sentence challenged in this appeal. 2. The prosecution case is that on 11.8.97, when PWs 1 and 2 engaged in patrolling duty through the road at Azhiyoor, they saw the accused coming though the said road from north to south CRL.A.No.463/03 -:2:- with a hardboard box and on suspicion the patrolling party stopped the accused and examined the box in the presence of independent witnesses and thus found 10 bottles of 375 ml Haywards brandy and 20 bottles of 180 ml Unicorn XXX rum without having the seal or authority of Kerala State Beverages Corporation. On questioning the accused, he failed to produce any valid permit for carrying such liquors. On the basis of the said allegation, crime No.63/97 was registered in the Vadakara Excise Range and after investigation, a report was filed based upon which the present case was instituted. On the appearance of the accused, after hearing the prosecution as well as the defence, a formal charge was framed for the above offence and when the same was read over and explained to the accused, he denied the same and pleaded not guilty. Consequently, the prosecution adduced its evidence CRL.A.No.463/03 -:3:- consists of the oral testimony of PWs 1 to 7 and the documentary evidence Exts.P1 to P11. M.O 1 series and M.Os 2 and 3 were marked as material objects. When the accused was questioned under sections 313 Cr.P.C and put to him the incriminating circumstances and evidence brought out during the prosecution evidence, he denied the same. The specific stand taken by the defence is to the effect that he was falsely implicated in the above case at the instance of certain merchants of chapel business in the locality as he sold chapels at a lesser price as he was an employee of chapel factory at Thrissur. Based upon available materials and evidence, the trial court found that the accused is guilty and he is convicted accordingly and the above sentence imposed upon him. It is the above judgment , conviction and sentence are challenged in this appeal. 3. I have heard the learned counsel for the CRL.A.No.463/03 -:4:- appellant and also the learned Public Prosecutor. 4. The learned counsel vehemently submitted that the finding of the court below is against the evidence and materials on record and therefore the order of conviction and sentence is liable to be set aside. The learned counsel pointed out that though the alleged offence was on 11.8.97, investigation was started on the expiry of nearly three years. It is also the case of the learned counsel that there is culpable delay on the side of the prosecution in filing the forwarding note in the court below. According to the learned counsel, the Excise Department in Kerala has no territorial jurisdiction over the alleged place of occurrence. It is also the contention of the learned counsel that except the interested version of the official witness, absolutely there is no independent evidence. It is also pointed out by the learned counsel that the alleged seizure is a false one since the material objects CRL.A.No.463/03 -:5:- contained no seal. Thus according to the learned counsel, the appellant is entitled to get a clear acquittal. 5. Opposing the above submission, the learned Public Prosecutor submitted that the evidence adduced by the prosecution is in tact and the defence has miserably failed in challenging the concrete evidence adduced by the prosecution. It is also the case of the public Prosecutor that there is no law which stipulate that the evidence of official witness cannot be believed unless the same is corroborated by independent evidence. The learned Public Prosecutor pointed out that the seizure was effected when PWs 1 and 2 were on patrol duty and the accused was arrested from the spot with the contraband article and the seizure was effected by recording the same in Ext.P1 mahazar. Besides the Ext.P1 mahazar, there are contemporary documents like Ext.P2 arrest CRL.A.No.463/03 -:6:- memo, Ext.P3 occurrence report and Ext.P4 remand report which will assure the credibility of the prosecution case. Thus the Public Prosecutor submitted that no interference is called for. 6. I have carefully considered the arguments advanced by the learned counsel for the appellant and also the Public Prosecutor. I have gone through the judgment of the trial court and also perused the evidence on record. 7. The prosecution heavily depend upon the evidence of PWs 1 and 2 to substantiate its case. PW1 is the Preventive Officer who was accompanied by PW2 guard, at the time of interception of the accused while he was carrying the contraband article. Ext.P1 seizure mahazar, Ext.P2 arrest memo, Ext.P3 occurrence report and Ext.P4 remand report are the contemporaneous documents which would assure credibility of the evidence of PWs 1 and 2 regarding CRL.A.No.463/03 -:7:- seizure of the contraband article and arrest of the accused. It is true that PWs 3 and 4 turned hostile to the prosecution. This Court, in the decision in Sivaraman v. State of Kerala (1981 KLT SN 9, Case No.17), held that even though the independent witness turned hostile, it cannot be said that no incident as deposed by the other witness had taken place at the scene of incident. According to me, if the evidence of the official witnesses is beyond any doubt or contradiction, there is no legal bar in accepting their evidence. In certain occasions, the evidence of independent witness may require, especially, when there are certain contradictions or embellishments etc with respect to the evidence of the official witnesses. On a perusal of the deposition of PWs 1 and 2, I find no reasons to discard their evidence and no corroboration from independent source is necessary to accept their evidence. The CRL.A.No.463/03 -:8:- evidence of PWs 1 and 2 supported by the above documentary evidence are in tact and there is no effective challenge against such evidence. 8. As rightly pointed out by the trial court, the defence has failed to make out any case of prejudice due to the delay in sending the forwarding note. In this juncture it is relevant to note that the accused as well as the contraband article and Ext.P1 to P4 were produced in the court on the next day and no delay was occurred in the meanwhile. Therefore, even if there is some delay in filing the forwarding note, that will not affect the prosecution case and no prejudice will be caused to the defence. 9. Another point raised by the defence is with respect to the place of occurrence. The trial court on the basis of the oral testimony of PW5, the Village Assistant, has categorically found that the Mahe Railway station and the place described in Ext.P1 CRL.A.No.463/03 -:9:- mahazar are within the territorial jurisdiction of the Kerala State, and hence the case of the defence cannot be accepted. It is also relevant to note that though a vague suggestion was made by the defence, no further attempt was made to substantiate such suggestion. In the light of the above discussion and the materials and evidence on record referred above, I am of the view that the prosecution has succeeded in establishing its case and the trial court is absolutely correct in convicting the accused/appellant for the offence charged against him. Hence, the conviction of the appellant for the above offence is confirmed. 10. The learned counsel for the appellant submitted that in the matter of sentence, some leniency may be shown as at the time of the alleged offence, the accused was at the age of 49 years and now 13 years are over. The above submission is CRL.A.No.463/03 -:10:- considered in the factual background of the case. Even according to the prosecution, the total quantity of the Indian made foreign liquor possessed by the accused will come about only 7.350 litres. Of course, the appellant-accused failed to show any permit to possess such Indian made foreign liquor which contained no seal for sale in Kerala. It is also relevant to note that as per the rules prevail in Kerala, a person can possess 3.500 litres of Indian made foreign liquor, possession of such permitted quantity of Indian made foreign liquor, is not an offence. At the time of the alleged incident, the appellant-accused was at the age of 49 years and now he will be at the age of 62 years. Considering the above facts and circumstances, I am of the view that the sentence can be modified and reduced to simple imprisonment for one month and to pay a fine of Rs.one lakh and the default sentence can be fixed as 2 months simple CRL.A.No.463/03 -:11:- imprisonment, 11. In the result, the conviction of the appellant- accused under section 55(a) of the Abkari Act and Rule 9 of the Foreign Liquor Rules recorded by the trial court is confirmed and he is sentenced to undergo simple imprisonment for one month and to pay a fine of Rs. 1 lakh (One lakh only) and in default of payment of fine, he is directed to undergo simple imprisonment for a further period of 2 months. Set off is allowed under section 428 Cr.P.C. Subject to the above modification with respect to the sentence, the Crl.Appeal is dismissed. V.K.MOHANAN, JUDGE. Kvm/- CRL.A.No.463/03 -:12:- V.K.MOHANAN, J. CRL.A. NO.463/2003 JUDGMENT 16.2.2010