IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 5TH APRIL 2010 / 15TH CHAITHRA 1932 CRL.A.No. 1962 of 2007() ------------------------------------ SC.522/2005 of III ADDL. SESSIONS COURT (ADHOC-I), THODUPUZHA .................... APPELLANT/ACCUSED NO.1 ------------------------------------------ MATHEW @ MATHACHAN,S/O. MATHAI ILLIKUNNUMPURATHU (H), CHUNKAM KARA, THODUPUZHA. BY ADV. MR.C.M.TOMY, MR.MATHEW SKARIA. RESPONDENT/COMPLAINANT --------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.C.M. KAMMAPPU. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. V.K.MOHANAN,J. ------------------------------ Crl.Appeal No.1962 OF 2007 ----------------------------------------------------- Dated this the 5st day of April, 2010 JUDGMENT The first accused in S.C.No.522/2002 in the Court of the III Additional Sessions Judge (ADHOC-I), Thodupuzha is the appellant herein, who challenges his conviction and sentence under Sections 8(1) and (2) of the Abkari Act. 2. The prosecution case is that the accused, two in numbers, were found in possession of 70 litres of illicit arrack at about 6 P.M on 5.12.2003 in the house of the first accused and thereby they committed the offences punishable under Sections 8(1) and (2) of the Abkari Act. On the basis of the said allegation Crime No.30/2003 was registered in the Excise Range, Thodupuzha and after investigation, report was filed before the Judicial First Class Magistrate Court, Thodupuzha whereupon C.P.No.53/2005 was instituted and subsequently, by order dated 30.09.2005, Crl.Appeal No.1962 OF 2007 2 the learned Magistrate committed the case to the Sessions Court, Thodupuzha where the above Sessions case was instituted and thereafter the case was made over to the Court of Assistant Sessions Judge,Thodupuzha and finally to the trial court for disposal. 3. On the appearance of the accused, after hearing the prosecution as well as the defence, a formal charge was framed which was read over and explained to the accused and they denied the same and pleaded not guilty. Thereafter, the prosecution adduced its evidence which consists of testimonies of PWs.1 to 7 and the documents Ext.P1 to P13. No evidence either oral or documentary, was produced by the defence. MO1 series, namely 2 cans each having 35 litre capacity were also produced and identified as material objects. The incriminating evidence and circumstances which emerged during the prosecution evidence, were put to the accused and they denied the same. The accused took a plea of total denial. On the basis of the available evidence and materials, the trial court found that the second accused is not guilty but the appellant/first Crl.Appeal No.1962 OF 2007 3 accused is found guilty and accordingly he is convicted under Section 8(1) and (2) of the Abkari Act and imposed a sentence of three years of rigorous imprisonment and to pay a fine of rupees one lakh. In default to pay the fine amount he was directed to undergo simple imprisonment for a further period of one year. Set off was allowed. It is the above conviction and sentence which is challenged in this appeal. 4. I have heard Sri.C.M.Tomy, the learned counsel appearing for the appellant and also the learned Public Prosecutor appearing for the State. 5. According to the prosecution when PW1 and party were conducting raid, they received information regarding the sale of arrack at the house of the first accused. Thereupon PW1 prepared Ext.P1 search memo and sent the same to the court and searched the house of the first accused in the presence of the first accused as well as the independent witness and accordingly detected two cans each of having 35 litres of capacity containing liquid, which by tasting and smelling identified as illicit arrack. Thus the Crl.Appeal No.1962 OF 2007 4 first accused was arrested who was standing in the dock. PW1 prepared Ext.P2 mahazar for the sampling and seizure of the contraband article. According to the prosecution the first accused had disclosed that the contraband article was entrusted with him by the second accused. According to the prosecution on examination of the identity card of the first accused and the ration card, PW1 satisfied that the house, from which the contraband article seized, belong to the first accused. Thus, after seizure of the contraband article and arrest of the first accused PW1 and party returned to the Excise Range Office and prepared Ext.P3 occurrence report. Ext.P4 is the property list along with which the contraband articles produced before the court. PW1 prepared Ext.P5 forwarding note based upon which the samples drawn from the contraband article were forwarded to the Chemical Lab for report. Accordingly Ext.P6 Chemical Analysis Report was received. Ext.P7 is the search list. Though PWs. 2 and 3 were cited and examined to prove the seizure and arrest of the accused, they turned hostile and portion of their CD statements are marked as Exts.P8 and P9 respectively. Crl.Appeal No.1962 OF 2007 5 Ext.P10 is the sketch of the place of occurrence marked through PW4, the Village Officer. PW5 is the Municipal Secretary through whom Ext.P11 ownership certificate of the house and Ext.P12 certificate issued by the Revenue Inspector were produced and marked. PW6 is the owner of the house of the building from where the contraband articles were recovered and he is the uncle of the appellant/first accused. Ext.P13 gift deed dated 20.6.1988 bearing No.1318/88 of SRO Thodupuzha, which was executed by PW6 in favour of the appellant, was marked through PW6. After investigation and on completing the same, PW7 laid the charge. The above mentioned two cans were marked as MO1 series. It is on the basis of the above materials and evidence the trial court convicted the first accused/appellant. 6. The learned counsel for the appellant submitted that there is no document to show that the accused/appellant was arrested from the house from where the contraband articles was allegedly seized by PW1. Except the evidence of PW1, there is no documentary evidence to show the Crl.Appeal No.1962 OF 2007 6 arrest. It is also the contention of the learned counsel that absolutely there is no independent evidence to corroborate the version of PW1 and none of the raiding members were examined. The learned counsel strenuously submitted that even though PW1 stated that he had examined the identity card and ration card of the appellant the same were not produced before the court and thereby the best evidence were kept away from the scrutiny of the court and the non production of such document caused prejudice to the accused. It is also contended by the learned counsel that though arrest memo and arrest intimation with respect to A2 were produced, the same were not marked so as to avoid the situation that will arise against the prosecution, because the prosecution has not produced arrest memo and arrest intimation with respect to the first accused/appellant. Thus according to the learned counsel, the prosecution has miserably failed to establish the charge against the appellant beyond reasonable doubt and therefore the finding of the court below is liable to be set aside and the accused is entitled to get clear acquittal. Crl.Appeal No.1962 OF 2007 7 7. On the other hand, learned Public Prosecutor submitted that there is no inconsistency or contradictions in the evidence of PW1, the Excise Inspector who detected the offence. Regarding the seizure and arrest of the accused the evidence of PW1 alone is sufficient. According to the learned public Prosecutor the available materials and the circumstances supported with the evidence of PW1 is sufficient to hold that the appellant/accused is guilty and therefore the finding of the trial court is fully justified and no interference is warranted. 8. I have carefully considered the arguments advanced by the counsel for the appellant as well as learned Public Prosecutor. I have also perused the evidence and materials on record. According to the prosecution 17 liters of illicit arrack was seized from the house of the first accused, the appellant herein. Though the independent witness cited by the prosecution turned hostile, the evidence of the official witness namely PW1 remain intact and though PW1 was subjected to lengthy cross examination, nothing elicitated from him to disbelieve his version regarding the Crl.Appeal No.1962 OF 2007 8 incident. Ext.P1 search memo which is the contemporaneous document would show that PW1 and party proceeded to the house of A1 based upon an information received by PW1 while he was conducting raid. It is based upon the said information PW1 proceeded to the house whereupon the contraband article was seized and the first accused found in the said house and he was arrested. It is true at the time of the alleged seizure and arrest of A1 the house was not in the ownership of the first accused/the appellant. But the facts and circumstances involved in the case would suggest that the accused is the person who managed the affairs of the house. Ext.P13 gift deed would show that though the property is not in the ownership of PW6, the same is seen gifted to A1 on condition that A1 will look after PW6. Admittedly, PW6 at that time was at the age of 82 years, who was suffering from astma. PW6 though married he has no children and his wife was not alive at the relevant time. The learned counsel submitted that though PW1 has deposed that he had examined the identity card and ration card of the accused the same were not produced Crl.Appeal No.1962 OF 2007 9 and that will resulted in prejudice to the accused. I am unable to accept the above contention in the light of the facts and circumstances involved in the case. In the present case the contraband articles were seized from the house of PW6, which is managed by A1, in the presence of the accused/appellant. The contention of the learned counsel would be relevant if A1 was not arrested then and there. In such a situation it is incumbent upon the prosecution to prove that the house from were the contraband article was seized belong to the exclusive possession of the appellant/accused. But in the present case A1 was present at the time of detection and he was arrested from the spot and thereafter produced before the court. The said facts are further proved through the contemporaneous document such as Exts.P1, P2, P3, P4 document. 9. Another point raised by the learned counsel is to the effect that except the testimony of PW1, there is no independent evidence and especially regarding arrest there is no documentary evidence. As I indicated earlier Ext.P1 search memo, Ext.P2 mahazar, Ext.P3 occurrence report and Crl.Appeal No.1962 OF 2007 10 Ext.P4 property list are contemporaneous documents connected with the seizure and arrest of the accused. Besides the above, there is evidence namely, the oral testimony of PW1 regarding the entire incident and arrest of the accused. Immediately after arrest accused was produced before the court against which there is no challenge at all. The evidence of PW1 gives a clear account regarding the seizure and arrest of the accused and there is nothing inconsistent or contradictory in his evidence to doubt the veracity of deposition of PW1. In the light of the above facts and circumstances, I am of the view that there is nothing legal or incorrect in the judgment of the trial court by which the appellant stand convicted for the offences for which he faced the trial. Therefore, I confirmed the conviction recorded by the trial court. 10. With respect to the sentence, the learned counsel for the appellants submitted that even according to the prosecution the allegation is that it was A2 who entrusted the contraband article with the appellant/accused for keeping the same in the house of the first appellant. But the Crl.Appeal No.1962 OF 2007 11 trial court acquitted the 2nd accused and considering the above facts and circumstances the some modifications may be made with respect to the sentence. Having regard to the facts and circumstances involved in the case and the appellant who is now at the age of 52 years, I am of the view that some modification can be made with respect to the sentence. Accordingly, three years rigorous imprisonment is reduced to two years, while maintaining the sentence of fine awarded by the trial court. But the default sentence is reduced and fixed as three months' simple imprisonment. The above modification with respect to the sentence is sufficient to meet the ends of justice. In the result, the conviction of the appellant under Sections 8(1) and (2) of the Abkari Act recorded by the trial court is confirmed, but his sentence is modified and refixed as two years rigorous imprisonment and while confirming the sentence of fine the default sentence is reduced and fixed as three months simple imprisonment. Set of is allowed under Section 428 of Cr.P.C. Thus the Crl. Appeal is dismissed, subject to the above Crl.Appeal No.1962 OF 2007 12 modification with respect to the sentence. Registry is directed to send a copy of this judgment forthwith to the Superintendent, Central Jail, Trivandrum for appropriate action, including for the release of the accused, if he had already suffered the revised sentence of imprisonment and default sentence, after giving the available concession and benefit he is not required in any other case. V.K.MOHANAN,JUDGE. mns