IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 12TH JANUARY 2009 / 22ND POUSHA 1930 CRL.A.No. 2758 of 2008 -------------------------------- SC.289/2008 of ADDL. DISTRICT & SESSIONS COURT, VADAKARA CP 260/2004 of JUDL. FIRST CLASS MAGISTRATE'S COURT, NADAPURAM .................... APPELLANT: ACCUSED --------------------------------- SHYJU, S/O.SANKARAN, C.N.6560, CENTRAL JAIL, KANNUR. BY ADV. PREMCHAND .R. NAIR (STATE BRIEF) RESPONDENT: COMPLAINANT ------------------------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR BY PUBLIC PROSECUTOR SRI. AMJAD ALI, THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. K. MOHANAN, J. ~~~~~~~~~~~~~~~~~~~~~~~~ Crl. Appeal No. 2758 OF 2008 ~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 12th day of January, 2009 J U D G M E N T This appeal is preferred by the sole accused in S.C. 289 of 2008 on the file of the Court of the Additional District and Sessions Judge, Vadakara challenging his conviction and sentence under Section 55 (a) of the Abkari Act. 2. The prosecution case is that on 25.5.2003 at about 2.30 PM, while the police party was conducting routine checking in the Nadapuram - Peringathur road at Kayapanachi, an autorikshaw bearing No. KL 11 F 3932 speedily gone away without stopping and when it was chased, the passengers of autoriksaw ran away after abandoning the vehicle near Manikanda Madam. On inspection of the autoriksahw, they found 10 cases of Indian made foreign liquor without sticker of the Kerala State Beverages Corporation. Therefore, the present appellant and other two accused were booked for the offence under Section 55(a) of the Abkari Act. 3. On the said allegation crime No. 165/2003 was Crl. Appeal No.2758 of 2008 : 2 : registered in the Nadapuram police station for the offence under Section 55(a) of the Abkari Act. After completing the investigation, final report was filed before the Judicial First Class Magistrate's Court, Nadapuram whereupon C.P. 260/04 was instituted and by order dated 19.1.2005 the learned Magistrate committed the case to the Sessions Court, Kozhikkode from where the case is made over to the trial court for disposal. As the present accused/appellant was absconding during the trial of S.C.174/2005, the case against him was split up and transferred to Long Pending Register and numbered as L.P 9/2008 which was later renumbered and thus the above mentioned Sessions Case was instituted. As the appellant accused was not capable to appoint his own counsel, legal aid was granted to him to defend his case. Thus, after hearing both the accused as well as the prosecution, a formal charge was framed under Section 55(a) of the Abkari Act and the accused denied the same when the same was read over and explained to him. Consequently, prosecution adduced evidence, consists of oral evidence of PW1 to PW8 and documentary evidence of Ext.P1 to Ext.P8. M.O.1 to M.O.5 were identified and marked as material objects. When the incriminating Crl. Appeal No.2758 of 2008 : 3 : circumstances were put to the accused while questioning under Section 313 of Cr.P.C., he denied the same. Finally, the court below found that accused is guilty of the charge levelled against him and he is sentenced to undergo Rigorous Imprisonment for one year and to pay fine of Rs.1,00,000/ (Rupees One lakh only) and in default of payment of fine he is ordered to undergo Rigorous Imprisonment for a further period of six months. Set off is allowed. It is the above conviction and sentence challenged by the appellant. 4. As the appellant is undergoing imprisonment in pursuance to the impugned judgment a counsel of this Court was appointed as state brief. I have heard Sri. Premchand R Nair, the counsel for the appellant as well as the learned Public Prosecutor. 5. The case of the prosecution mainly reveals through the oral testimony of PW1 to PW3. PW1 is the S.I. of Flying Squard of Nadapuram Police Station who is one among the detecting police party. According to him on 25.5.2003 at about 2.30 P.M. he along with detecting officer, driver as well as the head constable and three A.R. Police constables conducted vehicle checking at Kayapanachi. An autorikshaw bearing Crl. Appeal No.2758 of 2008 : 4 : registration KL11 F 3932, though stop signal given, speedily went away without stopping and they chased autorikshaw for 400m. and thus the autorikshaw stopped in front of the Manikand Madam. But the persons who were inside the autorikshaw were ran away and they could not be apprehended on the spot. The autorikshaw was contained 10 cardboard cases in a black plastic cover. On further inspection it was found to contain Indian made foreign liquor. PW1 gave detailed account of the contraband found in the autorikshaw. According to PW1, there were four cases of old Admiral brandy containing altogether 45 bottles of 180 ml each, 3 cases of Superstar brandy containing 48 bottles of 180ml each, one case of Bombay Delux brandy containing 48 bottles of 100ml each and one case of Majestic brandy containing 48 bottles of 180ml each. According to PW1, while travelling in the autorikshaw, accused was seen sitting in the left side of the vehicle. PW2 is the detecting officer who deposed before the court in terms of the deposition of PW1. He had stated that the contraband articles were sized as per Ext.P1 seizure mahazar and Ext.P2 is the F.I.R. registered at 5 P.M. on the same day when they reached in the police station. PW2 arrested A2 and A3 by Crl. Appeal No.2758 of 2008 : 5 : preparing Ext.P3 arrest memo and Ext.P3(a) is the inspection memo. He had identified the bottles and marked M.O.1 series to M.O.5 series. Thus it is proved through PW2 that 472 bottles in 10 cases were seized from the autorikshaw at the time of the detection. PW3, the head constable of the AR camp also deposed in terms of PW1 and PW2. PW4 is an attester to Ext.P1 seizure mahazar but he turned hostile to the prosecution though admitted his signature in the document. He deposed that he had signed Ext.P1 seizure mahazar from Manikanda madam at 2.30 P.M on 25.5.2003. PW5 is also attester to Ext.P4 scene mahzar and he had admitted his signature in document. PW7 is the Additional S.I. Of police, who conducted investigation. Ext.P5 property list is proved through PW7. Thus prosecution established that the accused was found in possession of 472 bottles, in cases, which are the Indian made foreign liquor, without sticker of Kerala State Beverages Corporation and also the bottles contained inscription that “for sale in Pondicherry State only'. Therefore sum and substance of the prosecution allegation, which stands proved, is that accused was found in possession of certain quantity of Indian made foreign liquor which are meant for sale in the Pondicherry Crl. Appeal No.2758 of 2008 : 6 : State only and without any authority for possessing the same in Kerala State. 6. The learned counsel for the appellant submitted that trial court has without any proper evidence convicted the accused. According to the counsel, the contraband article mentioned in the document and produced before the court below are to be one but the official witnesses are deposed before the court differently and hence the same are contradictory in nature. It is also the case of the counsel that documents were furnished by the prosecution are not sufficient and it does not disclose as to how many bottles of liquor sent for chemical analysis. The learned counsel also pointed out the conflicting versions given by the official witnesses regarding the distance from where they saw the accused ran away. Thus, according to the counsel there is no cogent and convincing evidence to connect the appellant with the incident. It is also pointed out that besides the interested version of the official witnesses, there are no independent witnesses to prove the prosecution case. Therefore, according to the learned counsel, the trial court while passing the impugned judgment miserably failed to appreciate the evidence in its strict sense and correct Crl. Appeal No.2758 of 2008 : 7 : perspectiveness. Therefore according to the counsel for the appellant the impugned judgment is liable to be set aside. 7. On the other hand the learned Public Prosecutor submitted that prosecution has succeeded in establishing its case by producing satisfactory evidence. The learned Public Prosecutor further submitted that prosecution case is well established through the evidence of PW1 to PW3 and supported by other contemporaneous documents such as Ext.P1 seizure mahazar, Ext.P4 scene mahazar and also Ext.P5 property list. Regarding the detection of the contraband article, according to the learned Public Prosecutor, there is no serious challenge. But the learned Public Prosecutor submitted that PW1 has categorically stated that he had seen the accused sitting on the left side of the vehicle and while running away from the spot abandoning the vehicle his back side was also seen. Though the prosecution witnesses were cross examined extensively nothing was brought to discredit their version. 8. The evidence of official witnesses supported by the contemporaneous documents such as Ext.P1 and Ext.P4, according to me are sufficient to prove the guilt of the accused. Crl. Appeal No.2758 of 2008 : 8 : The trial court after considering the defence taken at the time of trial also observed that although defence counsel raised a contention regarding the number of bottles available before the court at the time of trial, there is sufficient explanation regarding those aspect and shortage was occurred at the time of shifting of the police station to the new building. With respect to the above a report was also filed before the court on 18.7.2007. Thus, finally, the trial court found that accused is guilty and I find no reason to interfere with such findings and no case is made to take a different view. 9. Regarding sentence, it is submitted that a lenient view may be taken as the contraband article involved is not prohibited one, but only Indian made foreign liquor. Considering the fact the offence committed is possession of Indian made foreign liquor, though there is no authority to handle the same in the State of Kerala, I am of the view that certain modification can be made with respect to the sentence. Accordingly, substantive sentence is reduced from one year to three months. As the fine amount fixed is only minimum statutory amount, no interference is called for, but the default sentence is reduced from six months to Crl. Appeal No.2758 of 2008 : 9 : one month. Thus the substantial sentence is re-fixed as three months and the default sentence is re-fixed as one month. Set off is allowed under Section 428 of Cr.P.C. 10. From the records, it appears that the accused was arrested on 20.8.2003 and released only on 10.10.2008. Thus he had undergone about 50 days imprisonment as under trial prisoner and after the judgment, right from the date of judgment i.e. 21.10.2008 onwards, he is under going imprisonment. He has altogether undergone imprisonment for 132 days. In the light of the modified sentence and in view of the set off allowed, the appellant need not be detained further. Therefore, there will be a direction to release the accused/appellant forthwith if he is not required in any other case. Accordingly criminal appeal is disposed of confirming the conviction subject to the above modification with respect to the sentence. (V.K. MOHANAN, JUDGE) kmd