IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 30TH JUNE 2008 / 9TH ASHADHA 1930 CRL.A.No. 1059 of 2008() ------------------------ SC.210/2006 of SPL. COURT (NDPS ACT CASES), THODUPUZHA CP.40/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KATTAPPANA .................... APPELLANT: APPELLANT: --------------------- CHANDRAN, C.NO.2552, CENTRAL PRISON, TRIVANDRUM. BY ADV. SMT.SHEELA DEVI(S.B) RESPONDENTS: ------------- STATE OF KERALA REP. BY PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SRI.JAI GEORGE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.A.No.1059 of 2008 ---------------------------------------- Dated this the 30th day of June 2008 JUDGMENT This appeal is preferred by the appellant aggrieved by the verdict of guilty, conviction and sentence imposed on him in a prosecution under Section 8(1) of the Kerala Abkari Act. He faces the sentence of R.I for two years and a fine of Rs.1,00,000/- and in default to undergo S.I for six months. 2. The crux of the charge against the petitioner is that he was found to keep in his house 15 litres of arrack in two containers MOs 1 and 2 when the police party led by PW3 on receipt of discreet prior information conducted raid in his residential premises. The offence was detected by PW3 on whose report Ext.P7 F.I.R was registered. Investigation was completed by PW6 and final report was filed by him. 3. Cognizance was taken by the learned Magistrate. The case was committed to the court of Session. Charges were framed against the appellant. The appellant denied the offences alleged against him whereupon the prosecution examined PWs 1 to 6 and proved Exts.P1 to P11. Crl.A.No.1059/08 2 4. PWs 1 and 2 are attestors to Ext.P1 seizure mahazer. They supported the case of the prosecution. PW3 is the detecting officer. Exts.P2 and P2(a) are the paper slips affixed by them on MOs 1 and 2. Ext.P3 is the search memorandum. Ext.P4 is the arrest memo and Ext.P5 is the inspection memo. Exts.P6 and P7 are the F.I.S and F.I.R registered. Ext.P8 is the property list under which the properties were sent to the court. Ext.P9 is the forwarding note and Ext.P11 is the chemical examiner's report. PW4 is a neighbour and PW5 is the Secretary of the Grama Panchayat. Ext.P10 is the ownership certificate issued by PW5. PW6 has conducted the investigation. PW7 chemical examiner's report was secured by him after forwarding the article under Ext.P9 forwarding note. MOs 1 and 2, as stated earlier, are the containers in which the contraband article was found available in the house of the petitioner. 5. In the course of cross-examination of the prosecution witnesses and later when examined under 313 Cr.P.C the accused denied all circumstances which appeared in evidence and which were put to him. He took up the stand that PW1 had motive against him and that police had falsely registered a case Crl.A.No.1059/08 3 against him. He further contended that no proper detection/investigation was conducted. He relied on the discrepancy in his name described in Exts.P4 and P5 arrest memo and inspection memo. In the course of 313 examination, he took up a plea which was not advanced by him in the course of cross-examination of witnesses that he was a worker of the Marxist party engaged in sand collection work. Persons belonging to the Kerala Congress ill-disposed to him had attacked him and had foisted a false case against him. No defence evidence was adduced. 6. The learned Judge, on an anxious consideration of all the relevant inputs came to the conclusion that the prosecution has succeeded in establishing all ingredients of the offence punishable under Section 8 of the Kerala Abkari Act against the appellant. Accordingly, the learned Judge proceeded to pass the impugned judgment. 7. The appellant has preferred this appeal through prison authorities. Service of a State Brief counsel was made available to the appellant. The learned counsel for the appellant has advanced her arguments. The learned counsel for the Crl.A.No.1059/08 4 appellant assails the impugned verdict of guilty, conviction and sentence on the following grounds: i) The oral evidence of PWs 1 to 3 should have been discarded by the court below on the ground that they are interested. ii) The learned Judge must have held that the steps taken by PW3 do not inspire confidence at all. iii) The sentence imposed is at any rate excessive. 8. The prosecution relies on the oral evidence of PWs 1 to 3 as also the contemporaneous seizure mahazer Ext.P1 and the prompt Ext.P6 F.I.S and Ext.P7 F.I.R to drive home the charge against the appellant. It is contended that PW1 has enmity towards the appellant. PW1 had admitted that he had earlier filed a complaint against the accused. But in the course of his examination, he had clarified that his only grievance was that the appellant was carrying on illicit trade in arrack. There is no suggestion even in the course of cross-examination that PW1 had any other motive, ill-will or malice against the appellant except on this alleged ground. PW2's evidence is also branded as interested on the ground that he had admitted that he is a Crl.A.No.1059/08 5 friend of PW1. PW3, it is further contended, is an interested witness, he being the detecting officer himself. It is argued that in the light of the fact that he is the detecting officer, his evidence must be reckoned as interested. 9. I am unable to accept these contentions to throw overboard the evidence of PWs 1 to 3 as interested and unworthy of credit. PWs 1 and 2 are persons called by the police officials when they went on raid. The mere fact that PW1 had earlier complained to the police about the illicit activity going on in the house of the appellant is by itself no reason to jump to the conclusion that the oral evidence of PW1 as also the oral evidence of PW2, his friend must be discarded. PW3 is the detecting police official. As such public official, it is his duty to detect offences and bring the offenders to book. In these circumstances, the mere fact that PW3 is the detecting police official, cannot by itself persuade this court to approach his testimony with any amount of undeserved doubt, distrust or suspension. The oral evidence of PWs 1 to 3 is eminently supported by the contents of the contemporaneous Ext.P1 seizure mahazer as also Exts.P6 and P7 - prompt F.I.S and F.I.R Crl.A.No.1059/08 6 registered by PW3. I am not in these circumstances persuaded to reject the oral evidence of PWs 1 to 3. 10. Reliance is placed on the incongruity in the description of the appellant in Exts.P4 and P5. Ext.P1, Ext.P3 as also Exts.P6 and P7 show the name of the accused person correctly as Chandran alias Vellayan, S/o. Charley. In Exs.P4 and P5 alone his name is described as Charley alias Vellayan S/o.Charley. PW3 explained that this was only an accidental slip and the accused was the appellant herein who was in the dock and whose name was correctly described in all the other documents. Though dissatisfied with the error which has crept into Exts.P4 and P5 while describing the name of the appellant, that by itself cannot persuade me to throw overboard the entire case of the prosecution conceding the benefit of a non-existent doubt in favour of the appellant. 11. Attempt is also made to pick holes in the prosecution case with the help of the difference in the number of the house referred to in Ext.P1 and also referred to in Ext.P10. PW6, the investigating officer has explained the discrepancy and I am satisfied in the totality of the facts and circumstances of this case Crl.A.No.1059/08 7 that the case of the prosecution does not deserve to be discarded on the basis of such discrepancy also. 12. The upshot of the above discussions is that I concur with the conclusions of the court below that the evidence of PWs 1 to 3 duly supported by Exts.P1, P6 and P7 can safely be accepted and acted upon to sail to the conclusion that the detection of the contraband article from the possession of the appellant herein was made by PW3 in the manner alleged by the prosecution. 13. The evidence of PWs 1 to 3, if believed, read along with Ext.P11 chemical examiner's report satisfactorily establishes the ingredients of the offence punishable under Section 8(2) of the Kerala Abkari Act. The verdict of guilty and conviction do not in these circumstances warrant any interference. 14. The learned counsel for the petitioner then submits that leniency must have been shown on the question of sentence. I find merit in this contention. The sentence of fine imposed is the minimum permitted by law. I am in these circumstances satisfied that leniency can be shown on the question of the Crl.A.No.1059/08 8 substantive sentence of imprisonment as also in the default sentence that is imposed. 15. In the result, a) This appeal is allowed in part. b) The verdict of guilty and conviction of the appellant under Section 8(2) of the Kerala Abkari Act are upheld. c) Sentence imposed on the appellant is modified and reduced. Substantive sentence of imprisonment is reduced to R.I for a period of one year. Sentence of fine is upheld. Default sentence is reduced to S.I for four months. Communicate this judgment to the court below forthwith. The court below shall issue revised warrant of commitment. Communicate the order to the prison authorities and to the appellant through the prison authorities. (R.BASANT, JUDGE) jsr Crl.A.No.1059/08 9 Crl.A.No.1059/08 10 R.BASANT, J. CRL.A.No.1059 of 2008 ORDER 30/06/2008