IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 1ST JANUARY 2008 / 11TH POUSHA 1929 CRL.A.No.1091 of 2007(B) ------------------------------- SC.471/2006 of ADDL. SESSIONS COURT (ADHOC)-II, KALPETTA .................... APPELLANT: ACCUSED -------------------------- KUTTIKRISHNAN, C.NO.4899 CENTRAL PRISON, KANNUR BY ADV. LIJU M.P. RESPONDENT: STATE ------------------------- STATE OF KERALA REPRESENTED BY ADDL.PUBLIC PROSECUTOR, KALPETTA IN CRIME NO.93/06 OF AMBALAVAYAL P.S. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.1091 of 2007 ------------------------------------------------ Dated this the 1st day of January, 2008 JUDGMENT Convict No.4899 of Central Prison, Kannur has preferred this appeal from jail challenging the correctness and sustainability of the conviction and sentence passed against him by the Additional Sessions Judge (Adhoc)- II, Kalpetta in Wayanad Sessions Division for offences under Sections 8(1) and (2) of the Abkari Act. 2. It is the case of the prosecution that the appellant was found in possession of four litres of arrack intended for sale at Puttad in Thomattuchal amsom at 10.00 a.m. on 04/05/06. 3. Before the Sessions Court, the accused pleaded not guilty to the charge and consequently, a trial of the case was conducted. Crl. Appeal No.1091 of 2007 -2- 4. Prosecution examined PWs.1 to 8 and got marked Exts.P1 to P9 and also got identified MO1. On the prosecution closing their evidence, the accused was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. According to him, there was warrant pending against him in an earlier case and the police has implicated him in this case on account of that animosity. However, he did not adduce any evidence in defence. 5. The court below considered the case in the light of the evidence adduced in the case, found the accused guilty of the offences punishable under Sections 8(1) and (2) of the Abkari Act, convicted him thereunder; heard him on the question of sentence and sentenced him to undergo rigorous imprisonment for two Crl. Appeal No.1091 of 2007 -3- years and to pay a fine of Rupees One Lakh and in default to undergo rigorous imprisonment for a further term of six months with however right of set off. Hence, this appeal. 6. As the appellant could not engage a lawyer of his choice, Advocate Sri.Liju M.P. is appointed on State brief to argue the appeal on his behalf. 7. It is vehemently contended before me by the learned counsel for the appellant that there are ample circumstances in the case to show that the case is one falsely foisted against the appellant. The circumstances which he relied on are the following:- (1) According to the learned counsel, the detecting officer or the police officials accompanying him had no prior acquaintance with the accused against whom a warrant was pending and that therefore, it cannot be believed that the accused was being Crl. Appeal No.1091 of 2007 -4- apprehended in the process of executing warrant against him; and (2) that there are two scene mahazars in the case namely Ext.P6 prepared by PW1 and Ext.P8 prepared by PW4 which show that they were prepared at the very same time and that there is no explanation either for PW1 or for PW4 as to how it so happened that two scene mahazars are prepared in relation to this case. 8. PW1 is the detecting officer and he is the Sub Inspector of Police, Farok. He along with PC 1014 and PC 1090 (PW3) was proceeding in the station jeep in search of one Kuttikrishnan against whom warrant issued by Additional Sessions Judge (Adhoc)-II, Kalpetta was pending. At 10.00 a.m. at the place “Malayachankolly” he made enquiries about the said accused Kuttikrishnan whereupon he got information that for the last some time, the Crl. Appeal No.1091 of 2007 -5- said Kuttikrishnan was not in station, but however, a few minutes back he was found proceeding towards his house carrying a can in his hand. Getting the said information, they stopped the jeep near the Kuttad school and walked towards the house of the said Kuttikrishnan. While so they found a person carrying a can in his right hand. On questioning him, he disclosed that the contents in the said can is arrack and consequently, PW1 opened the cap of the can and examined the contents and found that the contents is arrack. Pursuant thereto, he effected arrest of the accused at 10.40 a.m preparing Ext.P1 arrest memo in that behalf. Ext.P1 shows the time of arrest as 10.40 a.m. PW1 effected seizure of the said can containing arrack preparing Ext.P2 mahazar in that behalf. In the presence of the accused, PW1 took 375 ml. of arrack in a sample bottle Crl. Appeal No.1091 of 2007 -6- of 375 ml. capacity and he took it as sample sealing and affixing the label signed by himself, the accused and the witnesses. The can containing the balance arrack was also taken into banthavast affixing label. MO1 is the said can. On reaching the Police Station with the accused PW1 registered this case against the accused drawing up Ext.P3 FIR in that behalf and forwarded the seized articles to court enlisting them in Ext.P4 property list. Ext.P5 is copy of the forwarding note prepared by PW1 submitted before court for forwarding the sample for chemical examination. Ext.P7 is the plan of the scene of the occurrence obtained through PW2/the Village Officer by PW1 giving requisition in that behalf. The testimony of PW1 is corroborated by the testimony of PW3/the police constable who was accompanying PW1 in the detection and seizure. The seizure effected by PW1 is Crl. Appeal No.1091 of 2007 -7- supported also by the testimony of PW6 an independent witness who has attested Ext.P2 seizure mahazar and also affixed signature on the label affixed to MO1. Though PW7 another independent witness has turned hostile, he has admitted of his having attested Ext.P2 mahazar and of having affixed his signature on the label on MO1. PW8 has given evidence in proof of Ext.P6 mahazar to which he is an attestor. No inconsistency is brought out in cross examination of PWs.1 and 3 who have sworn to the fact of detection and seizure so as to disbelieve their testimony which is supported also by the testimony of PW6 the independent witness. The appellant has no case that PW6 is having any animosity towards him so as to support the prosecution case if at all the prosecution case is not true. There is absolutely no inconsistency in the evidence tendered by PWs.1 and 3 and nothing is brought Crl. Appeal No.1091 of 2007 -8- out in cross examination of those witnesses which would suggest that the case registered against the appellant was being falsely foisted. 9. The contention of the counsel for the appellant that there are two scene mahazars in the case, viz. Ext.P6 prepared by PW1 and Ext.P8 prepared by PW4 and that aspect casts doubt on the truth of the prosecution case is bereft of merit. Ext.P6 is mahazar prepared by PW1 the detecting officer himself. Ext.P8 is mahazar prepared by PW4 according to whom he was preparing Ext.P8 mahazar as instructed by the Circle Inspector of Police, Bathery. There is no explanation offered by the prosecution in evidence as to how these two scene mahazars happened to be prepared in relation to the same scene of occurrence and that was not made use of in cross examination also by the defence. Crl. Appeal No.1091 of 2007 -9- 10. Public Prosecutor submits that Ext.P6 is mahazar prepared in the normal course by the detecting officer himself whereas Ext.P8 happened to be prepared by PW4/the Traffic Sub Inspector of Sulthan Bathery as instructed by the Circle Inspector under whom is the Ambalavayal Police Station as well where PW1 is the Sub Inspector and that it so happened probably as the Circle Inspector thought that the detecting officer should not continue as the investigating officer in the case. Probably that could be a reasonable explanation that could have been given by the investigating officer but that was not given. But I am of the view that the fact that two scene mahazars were prepared in relation to the same scene of occurrence - one probably by PW4 as instructed by the Circle Inspector and the other one by PW1 the detecting officer - would not in any way belie the prosecution Crl. Appeal No.1091 of 2007 -10- case or prejudice the accused when the detection and seizure of arrack from his possession is convincingly established on the evidence in the case. Thus, I see no reason why this Court is to interfere in the conviction entered into by the court below against the appellant. The sentence awarded by the court below is also moderate and reasonable. This appeal, in the circumstances, is devoid of merit. 11. In the result, confirming the conviction and sentence passed by the court below against the appellant, I dismiss this appeal. K.P.BALACHANDRAN, JUDGE kns