IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 CRL.A.No. 472 of 2003() ---------------------------------- SC.209/1999 of ADDL. SESSIONS COURT (ADHOC), KALPETTA ................................................................... APPELLANT(S): 1ST ACCUSED ------------------------------------------- MUHAMMEDALI, S/O. ALI, AGED 46 YEARS, KAPPARU HOUSE, NENMENI, SULTHAN BATHERY. BY ADV. SRI.BABU JOSEPH KURUVATHAZHA RESPONDENT(S): COMPLAINANT ----------------------------------------------- STATE OF KERALA REP.BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31. BY ADV.SRI.P.R.JAYAKRISHNAN, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl.Appeal No.472 of 2003 ------------------------------- Dated this the 17th day of February, 2010. J U D G M E N T The appellant herein is the 1st accused in Crime No.29/98, of Meenangad Police station, a crime registered for the offence punishable u/s.55(a) of Abkari Act. Now he stands convicted and sentenced for the above offence and thus he preferred this appeal challenging the above conviction and sentence. 2. The prosecution case is that on 25.2.1998 at 3 A.M., the accused Nos.1 and 2 were found transporting 300 packets of karnataka made arrack in a goods auto rikshaw and seeing the police party, the 2nd accused escaped and the 1st accused who is the present appellant was arrested and seized the articles and thereby the accused committed the offence punishable u/s.55(a) of Abkari Act. 3. After investigation a report was filed before the Judicial First Class Magistrate Court, Sultan Batheri and the case was committed to the Sessions Court as per the order dated 22.6.1999 in the committal proceedings stated and the case was 2 subsequently made over to the court of Additional Sessions Judge (Ad-hoc), Kalpetta, as Sessions Case No.209/1999. On the appearance of the accused, a formal charge was framed which read- over and explained to them and they denied the charge and pleaded not guilty which resulted in the further trial of the case, during which the prosecution has adduced its evidence consists of the oral testimony of PWs.1 to 6 and the documentary evidence such as Exts.P1 to P4. Material objects such as M.O.s 1 to 3 were also produced and identified. No evidence from the side of the defense. On the basis of the evidence and the materials, the Trial Court has found that the 2nd accused is not guilty and he is accordingly acquitted. But in the case of the 1st accused, the appellant herein, is found guilty of the offence punishable u/s.55(a) of Abkari Act and accordingly he is convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1 lakh and in default of payment of fine, he is directed to undergo simple imprisonment for a further period of 6 months. It is the above finding conviction and sentence are challenged in this appeal. 4. I heard Mr.Babu Joseph, Kuruvathazha, the learned counsel appearing for the appellant and also the learned Public 3 Prosecutor. 5. The learned counsel for the appellant vehemently submitted that the finding of the court below is absolutely incorrect and without basis of any cogent and reliable evidence. It is pointed out that except the interested version of the official witnesses, namely Pws.1, 2, 6 and 7, there are independent evidence to prove the allegation of the prosecution against the appellant. Thus according to the learned counsel, the conviction and sentence imposed by the court below is illegal and irregular, since there is no reliable and acceptable evidence. Another point raised by the learned counsel is that, the appellant is only a driver of the goods auto rikshaw and he was not aware of he contents of the plastic bag namely M.O.3. It is also point argued by the learned counsel that the prosecution has miserably failed to prove the conscious possession of the appellant, so as to fix the penal liability u/s.55(a) of Abkari Act. It is also the case of the learned counsel that the prosecution miserably failed to give a proper account for the loss of the contraband article at the time of the trial of the case. It is pointed out that though the prosecution has claimed that 300 packets, were seized from the possession of the accused, they produced only 246 covers out of which 6 covers are empty and 4 hence 54 covers are missing. The learned counsel further pointed out that, the prosecution has not produced any document to show that the samples were sent for chemical analysis. Thus according to the learned counsel, the finding of the courts below is liable to be interfered with and the appellant is entitled to get an order of acquittal. 6. On the other hand, the learned Public Prosecutor submitted that the evidence of Pws.1 and 5 are sufficient to hold that the appellant/accused is guilty of the offence since their evidence is free of any contradiction and doubt. It is submitted by the learned Public Prosecutor that though Pws.2 and 3 turned hostile, the evidence of Pws.1 and 5 are intact. The learned Prosecutor further submitted that, after the seizure of the contraband article at 3 A.M. on 25.2.1998, the contraband article and the accused were produced before the court on the next day, ie., on 26.2.1998. Therefore the contemporaneous document that including Ext.P1 seizure mahazar and Ext.P3 FIR, further render assurance of the correctness of the prosecution case. 7. I have carefully considered the arguments advanced by both the counsels for the appellant as well as the Public Prosecutor. I 5 have scrutinized the depositions of the prosecution witnesses and also perused other documentary evidence and materials. PW5 is the Sub Inspector of police, Meenangadi police station at the relevant time who detected the offence along with PW1. The evidence of Pws.1 and 5 give a correct account regarding the seizure. It is the specific case of prosecution that while they were on patrol duty, the accused Nos.1 and 2 were found transported 300 packets of karnataka made arrack in a goods auto rikshaw driven by the 1st accused/appellant and on interception, they seized the contraband article. Admittedly, the 2nd accused ran away on seeing the police party. According to the evidence of Pws.1 and 5, the contraband article contained in 300 plastic packets were found in a plastic bag, which kept on the platform of the autorikshaw. In this juncture, it is relevant to note that the time of the detection and seizure of the contraband article is at 3 A.M. on 25.2.1998. The goods autorikshaw was driven by the accused. No acceptable explanation offered by the accused as to how he happened to drive the goods autorikshaw at that point of time. The 1st accused has no case that A2 had got in the autorikshaw either at the instance of the 1st accused on paying charge while coming after the trip or A2 taken autorikshaw on hire for 6 his personal use or something like that. The attended circumstances which proved by the prosecution are sufficient to hold that the contraband article were transported in the goods auto`rikshaw driven by the 1st accused/appellant with his knowledge and convince. The learned counsel invited my attention to a decision of this court reported in 2007(1) KHC, page 462, of Sambasivan Vs. State of Kerala, which reads as follows: “Abkari Act,1077 (Kerala) - Section 55(b)(g) and Section 58 - possession - It is the duty of the prosecution to prove that the place from which the contraband articles seized actually belongs to the accused and accused was the person responsible for keeping contraband articles - Benefit of doubt should be given to the accused.” In the present case it is proved that the contraband article was seized from an autorikshaw driven by the 1st accused at about 3 A.M. on the date of occurrence. No convincing explanation offered by the 1st accused. As pointed out earlier, in the absence of any explanation from the side of the 1st accused, he can not escape from the liability u/s.55(a) of the Abkari Act. Hence the above decision is 7 not relevant in this case. 8. Another contention advanced by the learned counsel is with respect to the difference in the quantity of the contraband article that made available at the time of the trial. Admittedly, the prosecution has seized 300 packets of karnataka made arrack and out of 300 packets 6 packets were taken for collecting samples. That empty 6 covers are produced. Still then only 240 packets containing arrack made available at the time of the trial. When PW5 was examined, he had deposed that he had filed a report stating the fact that after producing the contraband article on 26.2.1998, the same were returned to the police for proper custody and while the said articles were kept in the police station, some were destroyed by rat and only 240 packets were produced as directed by the court. There is no cross examination of PW5 about the said report. The learned counsel pointed out that, even the packets produced in the court does not contain 100 ml. of arrack. The Trial Court has held that since the arrack is a volatile liquid, there is every possibility of reduction in the quantity due to evaporation. I find that the above explanation is quite scientific and acceptable and therefore the contention raised by the learned counsel is liable to be rejected. 8 9. In the light of the above discussion and the evidence referred above, I am of the view that the Trial Court is fully justified in its finding and consequently the conviction arrived on by the Court as against the appellant/1st accused is require no interference. Therefore, the order of conviction of the Court below passed against the appellant is confirmed. 10. Regarding the sentence, the learned counsel submitted that in the light of the particular facts and circumstances involved in the case, a lenient view may be taken especially the appellant/accused being a first offender. The records reveals that at the time of alleged incident the appellant/accused was at the age of 41 years and thereafter now 12 years are over and by that time, the appellant/accused crossed at the age of 53 years. Therefore, I am of the view that some modification can be made with respect to the sentence. Accordingly, the one year imprisonment ordered by the Trial Court can be modified and reduced to 3 months simple imprisonment and the order of fine awarded by the court below is confirmed but the default sentence awarded by the court below is reduced to 2 months simple imprisonment. In the result, this appeal is partly allowed confirming the 9 conviction of the appellant, u/s.55(a) of Abkari Act and he is sentenced to undergo simple imprisonment 3 months and further he is sentenced to pay a fine of Rs.1 lakh and in default of the payment of fine amount, he is directed to undergo simple imprisonment for a further period of 2 months. The accused/appellant is entitled to get set off u/s.428 of Cr.P.C. This Crl. Appeal is disposed of accordingly. V.K.MOHANAN, Judge. ami/