IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 21ST JANUARY 2008 / 1ST MAGHA 1929 CRL.A.No. 1402 of 2007 -------------------------------------- SC.1868/2001 of ADDL.SESSIONS COURT-TRIAL OF ABKARI ACT CASES,NEYYATTINKARA CP.35/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEYYATTINKARA .................... APPELLANT: MOHANAN,C.NO.1877, CENTRAL PRISON,TRIVANDRUM. BY ADV. ADV.INNOCENT FRANCIES PAPPALI(STATE BRIEF) RESPONDENT: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SRI.T.J.AMBOOKEN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 1402 of 2007 --------------------------- JUDGMENT This appeal is by Convict No.1877 Mohanan from the Central Prison, Thiruvananthapuram, challenging the correctness of the conviction and the sentence passed against him by the Additional Sessions Judge for the Trial of Abkari Cases, Neyyattinkara. He was convicted for offence under Section 58 of the Abkari Act (hereinafter referred to as 'the Act') and was sentenced thereunder to undergo rigorous imprisonment for a term of two years and to pay a fine of Rupees one lakh and in default to undergo rigorous imprisonment for a further term of three months. 2. The prosecution case against the appellant is that at 11 a.m. on 27.10.1999, PW4, a Preventive Officer of Thirupuram Excise Range Office, found him at Venpakal Hospital Junction Road-Bhaskar Nagar Road, in front of Shop No.A.P.IV-255, belonging to one Madhu of Venpakal Desom, in CRA 1402/07 2 possession of a five litre black jerry can containing arrack and thus, he has committed an offence punishable under Section 58 of the Act. PW4 effected seizure of the said illicit arrack possessed by the appellant after complying with all legal formalities and effected arrest of the appellant and registered case against him and laid crime and occurrence report before the Judicial First Class Magistrate's Court-I, Neyyattinkara. After completing the investigation. PW7, the Excise Inspector of Thirupuram Excise Range Office, laid final report against the appellant. The case was committed to the Sessions Division, Thiruvananthapuram as per the order of the learned Magistrate in Committal Proceedings No.35/01 and the Sessions Judge made over the case to the Additional Sessions Court for the trial of cases under the Abakri Act for trial and disposal. 3. On production of the appellant in the court below, pursuant to the issuance of production CRA 1402/07 3 warrant, the court below heard the preliminary arguments of the counsel engaged by the appellant and the learned Public Prosecutor, framed charge against the appellant for offence under Section 58 of the Act, read it over and explained it to the appellant and questioned him. Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted by the court below. 4. On the side of the prosecution, PWs 1 to 7 were examined and Exhibits P1 to P10 were got marked and MO1 was got identified. On the prosecution closing their evidence, the appellant 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. However, he did not adduce any evidence in defence. The court below considered the case in the light of the evidence adduced as aforesaid, found the appellant guilty of the offence punishable under Section 58 CRA 1402/07 4 of the Act, convicted him thereunder and sentenced him as already stated. Hence this appeal by the aggrieved appellant. 5. Advocate Sri.Innocent Francis Pappali was appointed on State Brief to argue the appeal on behalf of the appellant, as he had not engaged a Lawyer of his choice to argue the appeal on his behalf. 6. It is vehemently contended before me by the counsel on State Brief that PWs 1 and 2 are the only independent witness and they are attesters to Exhibit P4 mahazar and out of them, PW1 has turned hostile and PW2 has turned partly hostile and on the evidence of PWs 3 and 4, who are respectively, the Excise Guard and the Preventive Officer, the court below should not have entered into a conviction of the appellant. It is further contended by him that though PW4 states of sealing of arrack, such description is not there in Exhibit P4 property list and that is admitted by PW5 and CRA 1402/07 5 that therefore, there is no evidence of proper packing and sealing of the material object and for that reason also the appellant should not have been convicted. 7. It is true that PW1 does not support the prosecution case to any extent whatsoever. All the same, PW2, an attesting witness, has identified his signature in Exhibit P4. He has stated that the appellant and the excise officials were found standing when he was coming back after his work and the officials have asked him to sign in the mahazar and accordingly he signed in Exhibit P4 mahazar. He has also stated that he is not one who signs without realising the facts and that he is aware that the excise officials book offences under the Act and he realised that the appellant was booked by the excise officials in connection with such a case. According to him, he knew the appellant for the last three years. He has also stated that the appellant was being apprehended by the Excise CRA 1402/07 6 officials at 11 a.m. on 27.10.1999 in front of the shop of Madhu at Nettathottam and it is in connection with that, that he has signed in the mahazar as an attester. 8. PW4 is the Preventive Officer. According to him, he was conducting patrolling on 27.10.1999 on the instructions of the Excise Inspector and that while they were patrolling from the Hospital Junction along the road to Bhaskar Nagar from north to south and reached the place Nettathottam and in front of Shop No.A.P.IV-255, belonging to PW1, he saw the appellant coming carrying a five litre can and that seeing them the appellant was found to get scared. Consequently, he intercepted the appellant and examined the contents in the can held in the hands of the appellant and it was understood that the content was arrack and that thereafter he effected arrest of the appellant, preparing Exhibit P5 arrest memo. He has deposed that the said can was closed with its cap, was covered with cloth and CRA 1402/07 7 tied with twine and that was sealed using wax and affixing metal seal thereon, containing the letters “K.E.”, representing Kerala Excise and thus, he rendered it tamper proof and affixed label containing the signatures of himself, the appellant and the witnesses and it was thereafter that he prepared Exhibit P4 mahazar. He further stated that with the seized arrack, the records prepared and the appellant they reached back the Thirupuram Excise Range Office and produced all those articles and the appellant before the Assistant Excise Inspector, who was then holding the charge of Excise Inspector. He has identified MO1 as the contraband, the seizure of which was effected by him, on seeing the crime number noted on the can. In cross-examination, he has stated that he has not taken separate sample from the arrack in the can, but, has sealed the can at the scene of occurrence with the seal of the Excise Office in such a manner that if at all it is tampered with, it would be CRA 1402/07 8 realised, though, however, he admitted that the slip affixed by him on MO1 can is not seen on the can at the time of his examination in court. Nothing could be obtained from the testimony of PW4 to the benefit of the appellant. 9. PW3, examined by the prosecution, was, at the relevant time, a Guard in the Neyyattinkara Circle Office, though, at the time of examination, he was Preventive Officer (Trainee). He has deposed that at 11 a.m. on 27.10.1999 he was accompanying PW4 in the patrolling duty. He has corroborated the testimony of PW4 as regards witnessing of the appellant coming with a black can, PW4 intercepting him and examining the contents in the can and of realising the contents therein as illicit arrack and consequent arrest of the appellant, preparing arrest memo by PW4. He has also deposed that he is an attester to Exhibit P4 mahazar. He has further corroborated the testimony of PW4 when he swears that at the scene CRA 1402/07 9 of occurrence PW4 closed the cap of the can tightly, covered it by cloth, tied it with twine, and sealed it with wax, affixing also the seal of excise bearing the letters “K.E.”, representing Kerala Excise. He has also identified the appellant as the accused, whose arrest was, thus, effected. He has identified MO1 as the can with arrack that was seized under Exhibit P4 mahazar. He has also deposed that the road at the place of occurrence is lying north south. He has stated that he could identify MO1 seeing the crime number noted on it and has further stated that he can even without seeing the crime number identify MO1 that was seized from the appellant. He has strongly denied the suggestion that the case was being foisted by the excise against the appellant. However, no such question had been asked to PW4 by the defence. 10. PW5, the thondi clerk of the Judicial First Class Magistrate's Court-I, Neyyattinkara, from where, the case was committed to the Sessions, CRA 1402/07 10 has given evidence that she has got convinced after verifying the seal of the excise office and the impressions of the seal that the contraband was properly sealed and has identified Exhibit P7 entry in the thondi register as the entry in relation to MO1. She has stated that the thondi article was received on 27.10.1999, as evidenced from the initials of the learned Magistrate and that the date 26.10.1999 written by her is a mistake. She has also stated that on the oral directions of the learned Magistrate it was she, who packed the samples on 27.10.1999 in the 150 ml. bottle produced along with MO1 and that the sample so taken was closed tightly, was covered with cloth and sealed using wax and metal seal and was labelled with crime number and S.T. number. She has also stated that in Exhibit P3 forwarding note she was obtaining the signature of the learned Magistrate and that Exhibits P1 and P2 were being prepared by her. According to her, she has sent the CRA 1402/07 11 sample through the Excise Guard Vijayakumaran Nair on 16.11.1999 to the Chemical Examiner for examination and that from 27.10.1999 to 16.11.1999, the same bottle with the liquid therein was in her safe custody in court in a tamper proof condition and that the said sample was forwarded for chemical examination on 16.11.1999 when alone the Excise Guard was deputed from the Excise Office to carry the same to the Laboratory. She has also stated that Exhibit P8 chemical analysis report would go to show that the sample bottle was sealed and the seal was intact and the said seal tallied with the sample seal provided. She has also asserted that MO1 when produced was having the seal and that was why she has noted as tamper proof, as she was convinced that it was not tampered with and that was after such verification that she received it in court. 11. PW6 is the Excise Guard, who has taken the sample as described in Exhibit P7 from the court to CRA 1402/07 12 the chemical examiner and he has testified that what he has so taken and entrusted at the Laboratory is tamper proof sample. 12. The contention that MO1 sample had not been properly packed and sealed is not at all tenable in the light of the evidence adduced by examination of PWs 3, 4 and 5 and it is futile to contend, after testing the veracity of PWs 3 and 4 in cross-examination, that their evidence is not believable, despite the fact that the counsel on State Brief was not able to point out any circumstance which would render their testimony unbelievable. The chemical analysis report shows that what was contained in MO1 can, on examination of the sample, was detected to be illicit arrack, as it contained ethyl alcohol 32.3% by volume. In the circumstances, conviction of the appellant by the court below for offence under Section 58 of the Abkari Act is correct and sustainable. There is no merit in assailing the conviction of the appellant CRA 1402/07 13 for the said offence. 13. Finally, it is contended before me by the counsel on State Brief that the court below has awarded rigorous imprisonment for a term of two years, which is very harsh. It is true that the substantive term of rigorous imprisonment for two years awarded is excessive, when considered in the background of the quantity of the contraband involved in the commission of the offence, though, however, the imposition of fine of Rupees one lakh being the minimum prescribed by the statute, cannot be stated to be excessive. Considering the entire circumstances of the case, I am of the view that the substantive term of rigorous imprisonment awarded to the appellant can be reduced by 50%. 14. In the result, I confirm the conviction of the appellant under Section 58 of the Act, but, reduce the substantive term of rigorous imprisonment awarded by the court below to him to rigorous imprisonment for a term of one year only, CRA 1402/07 14 maintaining, however, the imposition of fine as also the imprisonment ordered in default of payment of fine. This criminal appeal is disposed of as above. 21st January, 2008 (K.P.Balachandran, Judge) tkv CRA 1402/07 15 K.P.Balachandran, J. --------------------- Crl.A.No.1402 of 2007 --------------------- JUDGMENT 21st January, 2008