K.P.Rajan vs The Sub Inspector Of Police on 10 September, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 1131 of 2002(C)


1. K.P.RAJAN, S/O. VAKARAN, NADAVAYAL AMSOM
                      ...  Petitioner

                        Vs



1. THE SUB INSPECTOR OF POLICE,
                       ...       Respondent

                For Petitioner  :SRI.SUNNY MATHEW

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN

 Dated :10/09/2009

 O R D E R
               THOTTATHIL B. RADHAKRISHNAN, J
                  ...........................................
                  CRL.A.NO. 1121               OF 2002
                  ............................................
      DATED THIS THE          10TH DAY OF SEPTEMBER, 2009

                                JUDGMENT

The appellant stands convicted for the offences punishable

under Section 55(a) of the Abkari Act, on the allegation that at

about 2.15 pm, on 8.9.1998, he was apprehended with 235

packets of karnataka made arrack in a plastic bag being carried

for sale in controvention of the provisions of the Abkari Act . That

provision relates only to import and possession of such materials.

The allegation had been that such possession is for sale. The

charge against the petitioner could have been under Section 55(i)

also. But the court has framed charge only under Section 55(a).

2. PW5, Detecting Officer, Pws 2 and 3, the witnesses of

the mahazars and PW6, Investigating Officer and PW1, Police

Constable and PW4, witnesses to the scene mahazar were

examined. Search and seizure was covered by Ext.P1 mahazar.

Ext.P2 is the scene mahazar. Ext.P5 chemical examination report

proved the nature of the substance. MO3, a plastic sack, MO2,

six empty packets and MO1, 229 packets with substance also

CRA 1131/2002 2

formed part of evidence.

3. The Court of Session found the accused guilty of offence

punishable under Section 55(a) and sentenced him to undergo

rigorous imprisonment for one year and imposed a fine of

Rs.1,00,000/- and a default sentence of rigorous imprisonment

for six months in that regard.

4. Attacking the findings of Court of Session, the learned

counsel for the appellant reiterated the fundamental defence set

up before the trial court. It was canvassed that there is material

contradiction between the testimony of the witnesses in relation

to the alleged apprehension, arrest, search, seizure etc. But a

perusal of the materials would show that PW2 and PW3, though

were declared hostile, had admitted their signatures in the

mahazars and had also spoken about the presence of the

Detecting Officer, accused and seizure of the materials. The

contradictions attempted to be pointed out in relation to the

question as to who drove the jeep etc, were appropriately

addressed by the Court of Session and the findings rendered by

the learned Sessions Judge holding that there is no material

contradiction stands. The findings of the court below, on

CRA 1131/2002 3

appreciation of evidence does not warrant interference. The

conviction therefore stands.

5. On the question of sentence, the learned counsel for the

appellant stated that the accused has to maintain a family

consisting of wife and children and that he was only 36 years old

at the time of trial in 2001, in relation to the offences allegedly

committed in 1998. Having regard to the modus, the materials

involved, the nature of the transaction attributed and found

against the accused, viz, import of 235 packets of karnataka

made arrack, each packet containing 100 ml, the Court of

Session has rightly treated the first instance as the commission

of a grievous offence. Court of Session further stated that taking

a lenient view, sentence of rigorous imprisonment for one year is

being imposed. Having regard to the maximum prescription in

terms of Section 55, as to the sentence, I do not find any legal

infirmity in the sentence imposed by the Court of Session.

Taking into consideration the transaction as a whole, I find no

ground to reduce the sentence imposed on the accused. Appeal

fails and the same is accordingly dismissed.

6. The learned Magistrate shall take necessary steps for

CRA 1131/2002 4

execution of the impugned sentence. The appellant shall appear

and his sureties shall produce him before the Additional Sessions

Judge(Adhoc -Fast Track), Kalpetta on 20.11.2009 to suffer the

sentence, with proof of having satisfied the payment of fine, if

paid. Needless to say, the learned Magistrate shall take necessary

action against the appellant and his sureties under Section 446

Cr.P.C, if he does not appear as directed above.

                           THOTTATHIL B RADHAKRISHNAN,
                                      JUDGE


lgk/14/9




                           THOTTATHIL B RADHAKRISHNAN, J

CRA 1131/2002    5




                   CRL.A.1131/2002




                   JUDGMENT




                   10TH SEPTEMBER, 2009