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2021 DIGILAW 231 (KER)

V. H. Suresh v. State of Kerala

2021-03-08

K.HARIPAL

body2021
JUDGMENT : K. Haripal, J. 1. The convict in S.C. No. 386/2006 of Sessions Division, Kalpetta challenges his conviction under Section 8(1) and (2) of the Abkari Act, and sentenced to undergo simple imprisonment for four years and to pay fine of Rs. 1,00,000/-, in default simple imprisonment for two years. The case had originated on a final report laid by the Excise Inspector, Sulthan Bathery in Crime No. 46/2005 of Bathery Excise Range. 2. The precise allegation is that on 11.07.2005, at 5.45 p.m., the Preventive Officer, Excise Enforcement and Anti Narcotic Special Squad, Wayanad and party, while engaged in usual patrol duty, found the appellant on the Ponnakam paddy land area, on the road leading to Nambiarkunnu from Vendol in Cheeral village in Sulthan Bathery taluk, carrying six litres of arrack in a can having capacity of 10 litres. He was arrested from the spot, the contraband was seized under a mahazar prepared in the presence of independent witnesses and the material papers were handed over to the Excise Range Office and the said crime was registered. The accused was produced along with the contraband before the court on the following day itself. On conclusion of investigation, the charge sheet was laid before the Judicial First Class Magistrate, Sulthan Bathery where the case was taken on file as C.P. No. 93/2006 under Section 8(1) and (2) of the Abkari Act. After completing procedural formalities, the case was committed to the Sessions Court, Kalpetta from where it was made over to the Additional Sessions Court (Adhoc) I, Kalpetta. 3. After hearing counsel on both sides, the learned Additional Sessions Judge framed a charge alleging offence under Section 8(1) and (2) of the Abkari Act, read over and explained in Malayalam to which the appellant pleaded not guilty. He was on bail. He was defended by a counsel of his choice. 4. The prosecution evidence consists of oral testimony of PWs 1 to 7 besides documents marked as Exts. P1 to P7. Material objects were identified and marked as MOs 1 and 2. On conclusion of evidence, when examined under Section 313(1)(b) of the Code of Criminal Procedure, hereinafter referred to as the Cr.P.C., the appellant denied all the incriminating materials and reiterated his innocence. P1 to P7. Material objects were identified and marked as MOs 1 and 2. On conclusion of evidence, when examined under Section 313(1)(b) of the Code of Criminal Procedure, hereinafter referred to as the Cr.P.C., the appellant denied all the incriminating materials and reiterated his innocence. As it was not a fit case for acquittal under Section 232 of the Cr.P.C., the appellant was called upon to enter on his evidence in defence. However, no evidence was adduced by him. After hearing counsel on both sides, the learned Additional Sessions Judge repelled his plea of innocence, found him guilty and imposed a sentence as afore stated. That finding is under challenge in this appeal preferred under Section 374(2) of the Cr.P.C. 5. I heard the learned counsel for the appellant and also the learned Senior Public Prosecutor. The trial court records were also verified. 6. The learned counsel for the appellant submitted that the trial court was not justified in placing implicit reliance on the testimony of PWs 6 and 7, Excise Officials; from the oral testimony of PWs 3 and 4 independent witnesses, it is quite evident that they were not witnesses to the detection or recovery of the contraband from the appellant; they were called to the place at the time of preparation of the mahazar, which will not satisfy the statutory requirement. According to the learned counsel, the alleged place of occurrence is a place where there is a view of 200 meters from either side. If it was a genuine case, there was no difficulty for the appellant to run away from the place seeing the department vehicle at a distance of 200 meters. No independent witness had seen the appellant in possession of the contraband or running after abandoning the item. Therefore, it is quite unsafe to proceed against the appellant based on the uncorroborated oral evidence of PWs 6 and 7. The learned counsel also found it unusual that after the alleged detection, the officials had gone to a far of place at Meenangadi; surpassing the nearby Excise Office at Sulthan Bathery, which only indicates that the Ext. P5 mahazar and connected documents might not have been prepared instantly at the alleged spot of occurrence, but in the office at Meenangadi. The learned counsel concluded that it is a false implication by concocting evidence, with the help of some abandoned contraband. P5 mahazar and connected documents might not have been prepared instantly at the alleged spot of occurrence, but in the office at Meenangadi. The learned counsel concluded that it is a false implication by concocting evidence, with the help of some abandoned contraband. According to him, the prosecution could not establish nexus between the contraband and the complicity of the appellant and therefore, he is entitled to be acquitted. The learned counsel also pleaded, alternatively for taking a lenient view, since the incident had happened on 11.07.2005, more than 15 years back. 7. On the other hand, the learned Public Prosecutor supported the conviction and sentence imposed on the appellant. 8. PW6 is the detecting officer. He is the Preventive Officer attached to the Excise Enforcement and Anti Narcotic Special Squad. He has given a version supporting the charge. According to him, that day himself and party were engaged in routine patrol duty; while moving through the said road, they saw a person at a distance of 30 meters standing on the side of the road, near the bridge carrying a jerry can of about ten litres capacity; seeing the official vehicle, after abandoning the can held by him, he took to his heels to the paddy land on the east; after making the Excise Guard, Anilkumar to stand guard to the contraband, other members of the party chased the person and apprehended him from a distance within 50 meters, brought him back to the place where he stood and the content of the can was tested by tasting and smelling and found that it is arrack. According to him, the item was seized and Ext. P5 mahazar was prepared in the presence of independent witnesses, the appellant was arrested after preparing the arrest notice; on the same evening, the contraband and the appellant were handed over to the Excise Range Office, where the crime was registered. PW7 K.V. Vijayakumar, the Excise Guard who accompanied PW6 also gave a similar version. The testimony of both the witnesses could not be shaken in cross examination. 9. PW3 Sukumaran and PW4 Oanan are independent witnesses who attested the seizure mahazar and the arrest memo. Both of them identified their signatures on the documents, but denied having witnessed the detection and arrest of the appellant. Both of them have turned hostile to the prosecution and were cross examined by the Public Prosecutor. 10. 9. PW3 Sukumaran and PW4 Oanan are independent witnesses who attested the seizure mahazar and the arrest memo. Both of them identified their signatures on the documents, but denied having witnessed the detection and arrest of the appellant. Both of them have turned hostile to the prosecution and were cross examined by the Public Prosecutor. 10. Other witnesses do not have material role in the proof of the charge. PW1 is the Excise Circle Inspector, who took the list of property, documents and the accused to the court on the following day, i.e., on 12.07.2005. He also prepared the Ext. P2 forwarding note. PW2 is the Excise Inspector who conducted the investigation, prepared the Ext. P3 scene mahazar and laid the charge sheet. He also proved the chemical examination report which suggests that the contraband is arrack. PW5 is the Preventive Officer, who registered the crime. 11. The credibility of the prosecution case depends largely on the reliability of PWs 6 and 7, the detecting officer and the Excise Guard who accompanied him. The learned Additional Sessions Judge after analysing the oral as well as documentary evidence came to the conclusion that there is absolutely nothing to disbelieve their version. In fact that is the strength of the prosecution case. Even though the learned counsel for the appellant is skeptical about their credibility, nothing has been attributed to doubt their veracity. They had come across such an incident during the course of official discharge of functions. No one has a case that they had any previous acquaintance with the appellant and for that reason no motive could be attributed against them for concocting a serious criminal case against him. of course, independent witnesses have not supported that part of the prosecution case which indicates that seeing the Excise party, the appellant had run away from the place abandoning the contraband on the side of the road. But in my assessment, the learned Additional Sessions Judge cannot be found fault with for placing reliance on the testimony of PWs 6 and 7 on material aspects. 12. Secondly, the contemporaneous documents like Ext. P5 seizure mahazar and Ext. P6 arrest memo have to be read along with the testimony of PWs 6 and 7. But in my assessment, the learned Additional Sessions Judge cannot be found fault with for placing reliance on the testimony of PWs 6 and 7 on material aspects. 12. Secondly, the contemporaneous documents like Ext. P5 seizure mahazar and Ext. P6 arrest memo have to be read along with the testimony of PWs 6 and 7. Even though PWs 3 and 4 were declared hostile to the prosecution, they have partly supported the testimony of PWs 6 and 7 by admitting their signatures on material documents. That part of their evidence clearly suggest that those are contemporaneous documents prepared by the officials. 13. After going through the materials including the testimony of witnesses, this Court also find it difficult to discard the version given by PWs 6 and 7, official witnesses which clearly indicate that the appellant had run away from the place seeing the Excise officials after abandoning the item on the road. In fact, it is a matter for drawing adverse inference against the appellant. The items were seized from the place itself and were produced before court, at the earliest possible opportunity. The material objects were produced before the court on the following day itself, along with the forwarding note which shows the promptitude in which the officials had acted. The chemical examination report suggests that the item contained 24.01% by volume of ethyl alcohol which is arrack attracting the offence punishable under Section 8(2) of the Abkari Act. 14. After revisiting the evidence, no blemish can be spelt out against the judgment of the trial court that the appellant is guilty under Section 8(1), punishable under Section 8(2) of the Abkari Act. He has been rightly convicted for the offence. The conviction is only to be confirmed. 15. Turning to the sentence, as pointed out by the learned counsel, the incident had happened way back in 2005 and due to the institutional lapses, finality could not be attained even after 15 years. At that time, the appellant was only 24 years old. No criminal antecedent is alleged against him. Considering these aspects, the sentence of four years simple imprisonment imposed on him is clearly on the higher side. It requires modification. It seems that simple imprisonment for six months will meet the interests of justice. That part of the sentence imposing fine is the statutory minimum and the default sentence shall remain as such. Considering these aspects, the sentence of four years simple imprisonment imposed on him is clearly on the higher side. It requires modification. It seems that simple imprisonment for six months will meet the interests of justice. That part of the sentence imposing fine is the statutory minimum and the default sentence shall remain as such. Subject to the above modification, the appeal is dismissed.