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2013 DIGILAW 281 (KER)

Seetharama v. State of Kerala

2013-03-23

V.K.MOHANAN

body2013
JUDGMENT V.K. Mohanan, J. 1. Challenging the judgment dated 25.10.2011 in S.C.No.14 of 2011 of the court of Additional District and Sessions Judge (Ad hoc) III - Kasaragod, and the conviction and sentence imposed, the accused therein preferred this appeal. 2. The prosecution case is that, while PW1 and party were conducting patrol duty at Devaragare on 27.1.2005 at 10.10 a.m., they saw an autorikshaw bearing registration No.KL-14 B-5409 coming towards them and the autorikshaw has taken sudden deviation from there and it was plied away. But the police followed the autorikshaw and intercepted it from a laterite quarry in the immovable property of one K.Lakshmi at Devaragare and on inspection of the autorickshaw, he found that the accused was the traveler in it and recovered 2 white plastic cans each of containing 35 litres each of illicit arrack. Thus according to the police, the accused two in numbers have committed the offence punishable under section 58 of the Abkari Act. On completing the investigation, the Sub Inspector of police, Badiadka police station, laid report in the court of Judicial First Class Magistrate-I, Kasaragod and consequently C.P.No.119 of 2006 was instituted and later the learned Magistrate committed the case to the trial court where it was received as S.C.No.14 of 2011 and finally it was made over to the present trial court for disposal. Though summons issued, the other accused who was the driver of the vehicle alone appeared and faced the trial. But the present appellant, who is another accused had absconded. Accordingly, the case against the present appellant was refiled as S.C.No.14 of 2011. Subsequently, under coercive steps, the present appellant was secured and accordingly after hearing the prosecution as well as the defence, a formal charge was framed against the accused under section 58 of the Abkari Act, which when read over and explained to the accused in malayalam, he pleaded not guilty and he denied the charge. Consequently, the prosecution adduced its evidence by examining Pws.1 to 6 and producing Exts.P1 to P9 documents. No evidence whatsoever adduced from the side of the defence. The trial court finally found that the prosecution has adduced legal and acceptable evidence to bring home the guilt of the accused punishable under section 58 of the Abkari Act and accordingly he is found guilty for the said offence and he is convicted thereunder. No evidence whatsoever adduced from the side of the defence. The trial court finally found that the prosecution has adduced legal and acceptable evidence to bring home the guilt of the accused punishable under section 58 of the Abkari Act and accordingly he is found guilty for the said offence and he is convicted thereunder. On such conviction, the accused sentenced to suffer rigorous imprisonment for 4 years for the offence under section 58 of the Abkari Act and to pay fine of `1 lakh and in default of payment of fine, to undergo rigorous imprisonment for 3 months. Set off is allowed. It is the above finding and order of conviction and sentence challenged in this appeal. 3. As the appellant is undergoing imprisonment in pursuance to the above judgment, he preferred the present appeal from jail and on receiving the appeal, as ordered by this Court, the Registry has appointed Adv.Sri.Manju Antony as State Brief to prosecute the appeal for and on behalf of the appellant. Thus, I have heard Adv.Sri.Manju Antony, learned counsel for the appellant and Smt.V.H.Jasmine, the learned Public Prosecutor for the State. 4. Pws.1 and 2 are the 2 material witnesses examined by the prosecution to prove the detection of the crime and the arrest and seizure of the contraband article. PW1 is the then Sub Inspector of police, Badiadka police station and PW2 is a police constable attached to the same police station who accompanied PW1 at the time of the detection of the crime. Thus when these witnesses were examined, they deposed strictly in terms of the prosecution allegation against the accused. According to these witnesses, when they were engaged in the patrol duty at about 10 a.m. on 27.1.2005 and conducting the vehicle checking in Manya- Kollangana road at Devaragare, they saw an autorikshaw coming from west towards them and on seeing the police party, the vehicle was drove away to the same direction from which it was coming. According to them, on suspicion they followed the autorikshaw in the police jeep and the autorikshaw was driven to a laterite quarry at Kollangana and it was stopped there. According to them, the said autorikshaw was driven by one Ashoka and the present accused was the traveller. On inspection of the autorikshaw, they found something concealed in two gunny bags kept in the platform of the vehicle. According to them, the said autorikshaw was driven by one Ashoka and the present accused was the traveller. On inspection of the autorikshaw, they found something concealed in two gunny bags kept in the platform of the vehicle. According to these witnesses, PW1 opened the lid of the cans and the contents of it was verified by tasting and smelling and realised that it was arrack. As per the evidence of Pws.1 and 2, on realisation of the fact that the plastic cans contain arrack, the accused was arrested and the contraband article was seized. On completing the process of arrest of the accused and the seizure of the contraband article, these witnesses have returned to the police station and prepared the FIR and other necessary documents. Thus when PW1 was examined, the certified copies of Exts.P1 seizure mahazar, P2 FIR, P3 property list, P4 forwarding note and P5 photograph of two cans are identified and marked. When PW2 was examined, he had also deposed in terms of the prosecution allegation and squarely in tune with the deposition of PW1. PW3 is the then Assistant Sub Inspector of police, who undertook the investigation during which, he had questioned the witnesses and got prepared Ext.P6 scene mahazar. PW6 is the then Sub Inspector who laid the charge on completing the investigation and when he was examined, certified copies of Exts.P8 chemical analysis report and P9 inventory were marked. Besides the above official witnesses, the prosecution has also examined two independent witnesses as Pws.4 and 5. But they turned hostile. When PW4 was examined, he identified his signature in Ext.P7 arrest memo, and also the summons received by him and thus Ext.P7 and Ext.C1 series (two in numbers) were marked through PW4. Similarly, when PW5 was examined, Exts.C1 and C2 and Ext.P7 are also identified and marked. These are the evidence of the prosecution. 5. Learned counsel for the appellant, after inviting my attention to Ext.P8 photograph, submitted that the said documents noway helpful for the prosecution to prove that plastic cans shown therein are recovered from the possession of the appellant or the same are involved in the present case. It is also the submission of the learned counsel that the appellant has not involved in any other similar offence and he is not a habitual offender. It is also the submission of the learned counsel that the appellant has not involved in any other similar offence and he is not a habitual offender. It is also the contention of the counsel that the R.C. owner of the vehicle, in which the contraband article was allegedly transferred, is not examined and no effective investigation was conducted in this regard. It is the further submission of the learned counsel that the prosecution agency has not conducted any investigation to trace out the source of the contraband article and the kingpin is not arrested. According to the learned counsel, even if the entire prosecution case is admitted as correct, what disclosed is that the appellant is only a passenger. Thus according to the learned counsel, the prosecution has miserably failed to prove its allegation against the appellant beyond reasonable doubt. Learned counsel for the appellant further submits that, the sentence imposed on the appellant/accused is exorbitant and arbitrary, and being the first offender, a lenient view may be taken in the matter of sentence. 6. On the other hand, the learned Public Prosecutor strenuously submitted that the prosecution has succeeded in proving its case against the appellant beyond reasonable doubt, since the evidence adduced by the prosecution in this case are sufficient and acceptable. It is the submission of the learned Public Prosecutor that even though the independent witness turned hostile, the same is not a ground to disbelieve the prosecution case, especially when the prosecution evidence which adduced through its official witnesses and the documentary evidence are intact. It is also the contention raised by the prosecutor that the appellant has miserably failed to show any defect or infirmities or contradictions in the evidence of Pws.1 and 2 and PW3 to disbelieve their evidence and the case of the prosecution. Hence, according to the learned Public Prosecutor, the trial court has arrived into its finding and conclusion based upon the unchallenged evidence of the prosecution and as such, no interference is warranted. 7. I have carefully considered the arguments advanced by the counsel for the appellant and the learned Public Prosecutor and I have perused the evidence and materials on record. 8. 7. I have carefully considered the arguments advanced by the counsel for the appellant and the learned Public Prosecutor and I have perused the evidence and materials on record. 8. In the light of the contentions advanced by the counsel for the appellant and the learned Public Prosecutor, the question to be considered is whether the trial court is justified in its finding and recording the conviction against the appellant for the offence under section 58 of the Abkari Act and the further question to be considered is whether the sentence imposed on the appellant is exorbitant or any modification is required or not. 9. I have already referred to the evidence and materials on record. In this case, the prosecution, through the deposition of PW6, has proved that Ext.P9 inventory was prepared by the Assistant Excise Commissioner, Kasaragod on 6.4.2006 and the learned Magistrate by his endorsement dated 25.11.2006, after physical verification of the articles mentioned in the inventory, certified that the same is in confirmation with the material objects verified. In this juncture it is relevant to note that immediately after the seizure of the contraband article as per Ext.P1 mahazar, PW1 and party reached in the police station and prepared Ext.P2 FIR and thereafter prepared Ext.P3 property list, which sent to the court after taking photographs of the plastic cans which contain the contraband article. It is the above material now certified by the learned Magistrate as per his certificate dated 25.11.2006 attached to Ext.P9 inventory. So even if there occurs some defect in taking photographs of the plastic cans, it will not help the defence for an acquittal. When PW1 was examined, he deposed that the photographs were taken from the rear side of the cans, of which, on the front side, the crime number etc. are given. Even if the above explanation of PW1 is not acceptable, the certificate issued by the learned Magistrate of the committal court proves the correctness of the prosecution case and the recovery of seizure of contraband article from the possession of the accused. Therefore, the first point raised by the learned counsel based upon Ext.P5 is not sustainable and the same is to be rejected and I do so. 10. Therefore, the first point raised by the learned counsel based upon Ext.P5 is not sustainable and the same is to be rejected and I do so. 10. Another point raised by the counsel is that the prosecution has not proved its case beyond reasonable doubt, since according to the learned counsel, except the interested version of official witnesses, there is no independent evidence to prove the case of the prosecution, particularly when Pws.4 and 5 turned hostile. I am unable to sustain the above contention. The appellant has miserably failed, as rightly pointed out by the learned Public Prosecutor, to show any infirmities or contradiction or defect in the evidence of Pws.1, 2, 3 and 6, the official witnesses. Learned counsel for the appellant may be justified in his submission in this regard, if any of such defect is pointed out, is occurred in the prosecution evidence. This Court in the decision reported in Vikraman v. State of Kerala, 2007(1) KLT 1010 has held that, "When evidence of detecting officer is credible, hostility of independent witness is not fatal in Abkari trials." Similarly, in another decision reported in Abdul Rasheed v. State of Kerala, 2008 (3) KLT 150 , this Court has further held that, "If testimony of official witnesses is blemishless and free from suspicion and inspires confidence, hostility shown by ill-motivated independent witness is of no consequence." In the present case, as I have already found, the evidence of official witness are credible and trust worthy, there is nothing irregular or illegal in acting upon their evidence, even though the independent witness turned hostile. So the above point is also not legally acceptable. 11. It is true, the prosecution has not conducted any serious and effective investigation to trace out the R.C. owner of the vehicle and the source of contraband article and the persons involved in the trafficking of this contraband article. Of course, that is a lapse on the part of the prosecution agency but such lapse gives no right to the accused for an acquittal. 12. In the light of the above discussion and the evidence and materials referred to above, I am of the view that, the learned Judge of the trial court is fully justified in his finding and convicting the appellant for the offence under section 58 of the Abkari Act and accordingly the conviction of the appellant is confirmed. 13. 12. In the light of the above discussion and the evidence and materials referred to above, I am of the view that, the learned Judge of the trial court is fully justified in his finding and convicting the appellant for the offence under section 58 of the Abkari Act and accordingly the conviction of the appellant is confirmed. 13. As I indicated earlier, with respect to the sentence, learned counsel submits that a lenient view may be taken and the sentence of imprisonment may be confined to the period of sentence already undergone by the appellant. According to the learned counsel, the appellant had already undergone 2 years and 2 months' imprisonment. I find some force in the above submission of the counsel. It is relevant to note that the appellant was at the age of 40 at the relevant time and he has to look after his aged mother and one un-married sister. It is also beyond dispute that in the present case no serious and effective investigation was conducted to trace out the source of the contraband article and the person really involved in the traffic of this contraband article and also the owner of the autorikshaw. In this juncture, it is relevant to note that in a recent decision reported in Rajamani v. State of Kerala,. 2013 (1) KLT 865 (SC), the Apex Court observed that, where the driver is not the owner of the contraband or having any financial interest, so long as kingpins are not identified, sentence of driver can be reduced from five years to three years. According to me, the appellant herein is also entitled to get the same treatment because of the factual similarity in the present case. Thus, in the light of the above mitigating circumstances and in the light of the above decisions of the Apex Court, I am of the view that, sentence imposed on the appellant requires modification. Hence, in the light of the submission of the learned counsel for the appellant and in view of the decision cited supra, according to me, 2 years rigorous imprisonment will be sufficient to meet the ends of justice and while retaining the sentence to pay fine of Rs.1 lakh, the default sentence can be reduced as one month simple imprisonment. Hence, in the light of the submission of the learned counsel for the appellant and in view of the decision cited supra, according to me, 2 years rigorous imprisonment will be sufficient to meet the ends of justice and while retaining the sentence to pay fine of Rs.1 lakh, the default sentence can be reduced as one month simple imprisonment. Accordingly, in modification of the judgment of the trial court with respect to the sentence, the appellant is sentenced to undergo rigorous imprisonment for 2 years under section 58 of the Kerala Abkari Act and he is also sentenced to pay fine of Rs.1 lakh and in default, he is directed to undergo simple imprisonment for one month. Set off is allowed. In the result, this appeal is dismissed confirming the conviction of the appellant for the offence under section 58 of the Abkari Act as imposed by the trial court by its judgment dated 25.10.2011 in S.C.No.14 of 2011 of the court of Additional District and Sessions Judge (Ad hoc) III - Kasaragod, but subject to modification with respect to the sentence. As this Court has already modified the sentence and reduced the same to 2 years rigorous imprisonment and the default sentence is reduced to one month simple imprisonment, the appellant is entitled to get released from the jail forthwith, as he had already undergone the sentence now modified and revised by this Court and particularly when the benefit under section 428 of Cr.P.C. is extended in favour of the appellant. Therefore, the Registry is directed to forward the Gist of the judgment to the Superintendent, Central Prison, Kannur, for further action in this regard.