IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 22ND DECEMBER 2010 / 1ST POUSHA 1932 CRL.A.No. 556 of 2010(D) ------------------------ SC.502/2006 of ADDL. SESSIONS COURT (ADHOC-III), KASARAGODE .................... APPELLANT(S): -------------- M.KUNHIRAMAN, S/O.KAVERY MADHAVAN, C.NO.7969, CENTRAL JAIL, KANNUR. BY ADV. ADV.ASHA P.KURIAKOSE[STATE BRIEF] RESPONDENT(S): --------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.R.VENUGOPAL. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. Appeal No.556 of 2010 ----------------------------------------------- Dated 22nd December, 2010. J U D G M E N T This appeal is filed against conviction and sentence passed against appellant by Additional Sessions Judge under Section 58 of the Kerala Abkari Act ('the Act' for short) to undergo imprisonment for a period of three years and to pay fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for three months. Set off was allowed. 2. According to prosecution, on 17.4.2004 at about 3.20pm, while PW1, the Preventive Officer and party were on patrol duty, they found accused proceeding through a public road, carrying plastic bag. He attempted to go away, while he was apprehended. The bag was taken from his possession and examined. It contained 20 polythene packets of arrack each containing 100 ml. The arrack was meant for sale in Karnataka as seen from the seal and writing on the plastic cover. One of the polythene packets was cut open, contents were examined by smell and taste, accused was arrested, articles were seized under mahazar, Ext.P1. The articles were sent to Assistant Crl.Appeal No.556/10 2 Commissioner of Excise for preparation of inventory and inventory is Ext.P4. The occurrence report was registered and on investigation charge was laid against appellant for offence under section 55(a) of Abkari Act. 3. The trial court framed charge against appellant under Section 58 of the Kerala Abkari Act. To prove the prosecution case, PW1 to PW5 were examined and Exts.P1 to P8 were marked. The accused took up a defence that he was not arrested from the spot, as alleged by prosecution. The trial court, after analysing the evidence found that prosecution proved that 20 polythene covers containing arrack were seized from the possession of appellant and the arrack was meant for sale in State of Karnataka, as revealed from the inscription on the cover itself. Therefore, accused kept in possession the contraband article knowing that it was illegally transported without payment of duty. The accused had no explanation for possession of the article and hence, presumption was also drawn under Section 64 of the Act. Crl.Appeal No.556/10 3 4. This appeal is filed by appellant from jail. Since he was undefended, Smt.Asha P.Kuriakose was appointed as State Brief. Heard both sides. Perused records. According to appellant, he was not arrested from the spot and no seizure was effected from him. The evidence adduced by prosecution is not sufficient to establish that such seizure was effected and he filed this appeal from the jail, without any legal aid. Independent witnesses turned hostile. There is no allegation that appellant tried to run away. It is not stated, from where samples were taken. 5. Learned Public Prosecutor submitted that the evidence of the officials sufficiently proves that accused was arrested from the spot and the contraband articles were seized from his possession from the spot. It is also revealed from the evidence that sample were taken and labels were affixed and those were seized under Ext.P1 mahazar. The conviction is only legal and proper, it is submitted. 6. On going through the evidence, records and the Crl.Appeal No.556/10 4 judgment, I find that PW1 and PW2, who are the officials have given evidence corroborating each other. It is clear from their evidence that 20 packets of arrack which were meant for sale only in Karnataka were seized from possession of accused. Samples were seized and sent for chemical analysis and those were found to contain Ethyl Alcohol. The accused had no explanation how he came into possession of these articles. The evidence of PW1 shows that on seeing the Excise officials, appellant tried to hide the bag and on suspicion, accused was apprehended. It is also in evidence that the packets contained inscription which reveal that the article is meant only for sale in the State of Karnataka. The appellant had no explanation for the possession of such article. 7. On going through the evidence of all the witnesses examined in this case, I find that practically, there is no cross examination challenging any of the aspects or even seizure. There is nothing on record to show that the officials who are examined in this case are in any manner motivated Crl.Appeal No.556/10 5 against accused to create a false case against appellant. PW1 and PW2 are the occurrence witnesses. PW4 and PW5 are other officials who conducted part of investigation. There is absolutely nothing on record to doubt the veracity of any of the official witnesses. Therefore, trial court has rightly placed reliance upon their testimony. 8. Of course, PW3, who is the independent witness turned hostile to the prosecution and stated that he did not see seizure or arrest of the accused from the place of occurrence. But, he admitted that he had signed in Ext.P1 and few other papers. He has no explanation why he signed those documents. The fact that PW3 signed the mahazar and other documents to certain extent corroborate the version given by PW1 and PW2. In the above circumstances, the fact that an incident, as alleged occurred is established by cogent and satisfactory evidence. 9. The court has framed a charge against accused under Section 58 of the Act. As per the evidence, accused tried Crl.Appeal No.556/10 6 to hide the article when he saw the officials. This conduct coupled with non-explanation for possession of the contraband article which was intended for sale in Karnataka indicate his guilty mind. As per the inscription on the packets, the articles are meant for sale only in Karnataka. The appellant has no case that duty was paid or that the article was transported illegally. In such circumstances, the conviction entered against appellant for offence under Section 58 of the Act cannot be said to be illegal or unsustainable. 10. The total quantity of contraband article involved is 2 litres of arrack. The accused has already undergone imprisonment for a term of about more than one year. Taking into consideration all the facts and circumstances, I find that period of detention which he has already undergone will suffice to meet the ends of justice and the sentence can be modified accordingly. 11. In the result, the following order is passed : (i) The conviction passed against appellant under Crl.Appeal No.556/10 7 Section 58 of the Kerala Abkari Act is confirmed. (ii) The sentence passed against appellant under Section 58 of the Kerala Abkari Act is modified and limited to the period of detention and imprisonment, which he has suffered in this case. (iii) The appellant is set at liberty forthwith. (iv) Registry shall issue release order forthwith. This appeal is partly allowed. K.HEMA, JUDGE. tgs