High Court Kerala High Court

Thankappan vs State Of Kerala on 2 August, 2010

Kerala High Court
Thankappan vs State Of Kerala on 2 August, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 2979 of 2003()



1. THANKAPPAN
                      ...  Petitioner

                        Vs

1. STATE OF KERALA
                       ...       Respondent

                For Petitioner  :SRI.GEORGEKUTTY MATHEW

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :02/08/2010

 O R D E R
          M.SASIDHARAN NAMBIAR,J.

           ---------------------------------------------
             CRL.R.P.NO.2979 OF 2003
           ---------------------------------------------
             Dated 2nd           August, 2010


                          O R D E R

Petitioners are accused 1 and 2 in

S.T.2077/1996 on the file of Judicial First

Class Magistrate-III, Thrissur. They were

convicted and sentenced to simple

imprisonment for three months and fine of

Rs.25,000/- and in default simple

imprisonment for six months each for the

offence under Section 55(a) of Abkari Act.

Third accused was acquitted finding that

prosecution did not establish that he was

owner of the vehicle. Petitioners

challenged the conviction and sentence

before Sessions court, Thrissur in

Crl.A.422/2001. Learned Additional Sessions

Judge on re-appreciation of evidence

CRRP 2979/03 2

confirmed the conviction and sentence and

dismissed the appeal. It is challenged in the

revision.

2. Learned counsel appearing for the

petitioner and learned Public Prosecutor were

heard.

3. Argument of the learned counsel

is that there is no independent evidence to

prove that petitioners were transporting

contraband liquor and relying on the evidence

of Pws.1 to 3 alone, courts below should not

have convicted them. It was argued that

petitioner is the driver and second

petitioner is the cleaner of the lorry and

contraband article was seized from the built in

tank concealed in the vehicle and in the

absence of evidence to prove that it was

concealed with the knowledge of the

petitioners, petitioners should not have been

CRRP 2979/03 3

convicted. Finally, learned counsel argued

that as the incident occurred in 1996,

substantive sentence may be avoided.

4. Learned Public Prosecutor pointed

out that Ext.P3 certificate of chemical

analysis establish that contraband article

contained 94.64% by volume of Ethyl Alcohol

and there is no reason to interfere with the

conviction or the sentence.

5. Prosecution case is that on

17/9/1996 at about 11.15 p.m lorry KL-7/L-3427

was found parked on the side of National

Highway in front of Indian Coffee House at

Mannuthy. First petitioner was the driver and

second petitioner, the cleaner. Getting

suspicious Pws.1 to 3 Excise Officials checked

the vehicle and it was found that vehicle was

not having any valid license or permit. When

lorry was examined, it was found that in two

CRRP 2979/03 4

tanks 2000 liters of spirit was being

transported. The spirit in the vehicle was

seized and Ext.P1 mahazar was prepared and

three representative samples were also taken.

Petitioners were arrested. Samples were

produced in court and sent for chemical

analysis and obtained Ext.P3 report. Under

Ext.P2 occurrence report case was registered.

On the final report being filed, learned

Magistrate took cognizance of the offence

under Section 55(a) of Abkari Act. Petitioners

and third accused pleaded not guilty.

Prosecution examined four witnesses and marked

three exhibits. Petitioners did not adduce

any evidence. They did not explain possession

of the spirit found in the vehicle, when

questioned under Section 313 of Code of

Criminal Procedure. Learned Magistrate accepted

the evidence of Pws.1 and 4 and found that

CRRP 2979/03 5

petitioners were possessing 2000 liters of

spirit in violation of the provisions of the

Abkari Act and Rules and therefore, convicted

them for the offence under Section 55(a) of

Abkari Act. Learned Sessions Judge appreciated

the evidence and confirmed the findings.

6. Learned counsel argued that when

Pws.3 and 4 independent witnesses to Ext.P1

mahazar turned hostile to the prosecution,

evidence of Pws.1 and 2 should not have been

accepted. I have gone through the evidence of

Pws.1 and 2 and Ext.P1 mahazar. No material

contradictions were pointed out. Fact that

independent witness to the scene mahazar turned

hostile to the prosecution, does not mean that

evidence of an Excise Officials is to be

disbelieved. There is no rule or law that

evidence of an Excise Official or a police

officer is either to be disbelieved or to be

CRRP 2979/03 6

viewed with suspicion. Evidence of Pws.1 and 2

is fully corroborated by Ext.P1 mahazar.

Courts below on proper appreciation of

evidence accepted the evidence of Pws.1 and 2

and found that petitioners being, the driver

and cleaner of the lorry KL-7/L-3427, were

transporting 2000 liters of spirit when it was

detected at about 11.15 p.m on 17/9/1996.

7. Ext.P3 report establishes that it is

spirit. In such circumstances, conviction of

the petitioner for the offence under Section 55

(a) of Abkari Act is perfectly legal.

8. Then the only question is with

regard to the sentence. Considering the huge

quantity of spirit being transported, I find no

reason to interfere with the sentence also.

Even though sentence as on the date of

commission of the offence is punishable with

imprisonment for a term which may extend to

CRRP 2979/03 7

two years, learned Magistrate sentenced the

petitioners only to simple imprisonment for

three months. Fine of Rs.25,000/- is the

minimum fine provided under the Abkari Act.

In such circumstances, there is no reason to

interfere with the conviction or the sentence.

Revision is dismissed. Petitioners are

directed to appear before the Judicial First

Class Magistrate-III, Thrissur on 12/8/2010.

Judicial First Class Magistrate is directed to

execute the sentence.

M.SASIDHARAN NAMBIAR,
JUDGE.

uj.