High Court Kerala High Court

Chekkutty vs The Excise Inspector on 18 December, 2008

Kerala High Court
Chekkutty vs The Excise Inspector on 18 December, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 64 of 2004()


1. CHEKKUTTY,
                      ...  Petitioner

                        Vs



1. THE EXCISE INSPECTOR, MANJERI.
                       ...       Respondent

2. STATE OF KERALA,

                For Petitioner  :SMT.T.J.SEEMA

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.K.MOHANAN

 Dated :18/12/2008

 O R D E R
                         V.K. MOHANAN, J.
                       ------------------------------
                        Crl. A.No. 64 of 2004
                    ------------------------------------
               Dated this the 18th day of December, 2008

                             JUDGMENT

This appeal is preferred by the sole accused in S.C No.360/2000

on the file of the Additional District and Sessions Judge (Adhoc) Fast

Track Court No.1, Manjery challenging his conviction and sentence

under Section 55(a) of the Abkari Act.

2. The prosecution case is that on 27/10/1997 at about 5.45

P.M, the accused was found in possession of 3 litres of illicit arrack in

a white Can having capacity of 5 litres at Vettathur Desom and thereby

committed an offence punishable under Section 55(a) of the Abkari

Act. On the basis of said allegation, Crime No.24/1997 was registered

in the Excise Range, Manjery. On completion of investigation, charge

was laid before the Judicial First Class Magistrate Court, Malappuram,

wherein C.P.No.55/2000 was instituted. Learned magistrate as per his

order dated 31/10/2000 in C.P. No. 55/2000 committed the case to the

Sessions Court. Sessions Court made over the case to the trial court

for disposal.

Crl. A.No. 64 / 2004
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3. On appearance of the accused, charge was framed, which

was read over and explained to him. He pleaded not guilty, which

resulted in the further trial of the case, during which PWs 1 to 6 were

examined and Exhibits P1 to P8 were marked from the side of the

prosecution. M.O.1 Can was identified and marked as material object.

The accused was questioned under Section 313 of Cr.P.C. and he

denied all the incriminating circumstances came out in evidence. He

took the stand of total denial. No evidence was adduced from the side

of the accused. The trial court after considering the evidence of both

prosecution as well as defence, came to the conclusion that the accused

has committed the offence charged against him and accordingly he was

convicted under Section 55(a) of the Abkari Act. Consequently, after

hearing the accused, he was sentenced to undergo Rigorous

Imprisonment for 5 years and to pay a fine of Rs.1,00,000/-. He was

further directed to undergo Simple Imprisonment for a further period

of one year, in case of default in the payment of fine amount. It is the

above conviction and sentence challenged in this appeal.

4. I have heard learned counsel appearing for the appellant as

Crl. A.No. 64 / 2004
3

well as the Public Prosecutor.

5. The main contention advanced by the counsel is that the

M.O.1 Can was not seized from the appellant. Therefore, the appellant

was falsely implicated by PW1. According to the learned counsel, the

appellant was called upon to sign some papers by the Excise Party and

as well as PWs 3 and 4 were asked to affix their signatures on some

papers. It is also the case of the counsel that, in fact, the crime was

registered against one Velayudhan and not against the appellant and it

was Velayudhan, who was taken into custody along with the

contraband articles. Thus accordingly, the accused is falsely implicated

in the above crime. There is no independent evidence to corroborate the

evidence of the witnesses. Therefore, according to the counsel, the

conviction and sentence passed by the court is liable to be set aside. It

is also the case of the counsel that M.O.1 which produced before the

court did not contain any liquid. Therefore, the possibility of tampering

cannot be proved. According to the learned counsel, the story of the

prosecution that 2 litres and 625 ml of illicit arrack were evaporated,

cannot be swallowed without a pinch of salt. Thus according to the

Crl. A.No. 64 / 2004
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learned counsel, the appellant/accused is entitled to get the benefit of

doubt. It is also the case of the counsel that the sentence imposed is

disproportionate and exorbitant.

6. Learned Public Prosecutor submitted that there was no

serious attack from the part of defence against the seizure and to the

evidence of the departmental witnesses. It is also submitted by the

Public Prosecutor that points raised in this appeal has already been

dealt with by the trial court and by assigning convincing reason, the

trial court rejected those contentions and found that the accused is

guilty of the charge levelled against him. Thus, according to the

learned Public Prosecutor, no ground is made out to interfere with the

order of conviction passed by the court below.

7. I have carefully considered the contentions advanced by

both the counsel for the appellant as well as Public Prosecutor and also

perused the evidence and materials on record. PWs.1 and 2 are the

main official witnesses cited and examined by the prosecution to

prove the allegation against the accused. PWs 1 and 2 in the

depositions categorically stated that while they were on patrol duty

Crl. A.No. 64 / 2004
5

along with Excise party around Cheruvayoor-Vattathur and while they

were proceeding towards Mannattu side from Vettatur, the accused

was found carrying M.O.1 Can in front of the tea shop, on the road

side. On some doubt, the accused was intercepted and examined the

contents of M.O. 1 Can by smelling and tasting and found that contents

were illicit arrack. Thus, as per Exhibit P1 mahazar, the M.O. 1 Can

and the contents therein were seized in the presence of independent

witnesses and sample was drawn then and there. Though PWs 1 and 2

were cross examined, nothing was brought to disbelieve their version.

It is true that the independent witnesses mainly PWs 3 and 4 were cited

and examined to prove the seizure of sample of the illicit arrack, were

turned hostile. It is to be noted that though PWs 3 and 4 were turned

hostile, they have admitted their signature in Exhibit P1, mahazar.

During admitting the signature in Exhibit P1 mahazar, they have also

deposed that they put their signature in the presence of PWs 1 and 2

and the accused, at the place of occurrence. Normally, there is no legal

bar to accept the evidence of official witnesses and to use the same to

convict the accused. If evidence of such official witnesses are not free

Crl. A.No. 64 / 2004
6

from contradiction or doubt, naturally the court will in loath accepting

such evidence unless the same is corroborated from independent

evidence. In the present case, absolutely there is no contradiction or

infirmity or doubt regarding the veracity of the depositions of PWs.1

and 2. PWs 3 and 4 though turned hostile, deposed that they put their

signature at the spot in the presence of accused as well as PWs. 1 and

2. Thus, the prosecution has succeeded in establishing and proving the

seizure of illicit arrack about 3 litres from the possession of the

accused.

8. One of the contentions taken by learned counsel for the

appellant is that the contraband article was not seized from the

possession of the accused, on the other hand the same was effected

from the possession of one Velayudhan. The above submission was

made on the basis of the name happened to be shown in Exhibit P1 and

other documents. The explanation offered by PWs 1 and 2 is to the

effect that the father’s name of the accused is Velayudhan and while

repeating the name of the accused in the documents, the name

Chekkutty is omitted and it is only a clerical mistake. On perusal of

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7

Exhibit P1, which is a contemporaneous document, it can be seen that

according to prosecution, the seizure was effected from the possession

of Chekkutty, S/o. Velayudhan, the accused. It is also in evidence that

the accused is the person taken into custody from the spot along with

the contraband article. Evidence of PWs 1and 2 further show that it was

the accused Chekkutty, who arrested from the spot with the contraband

article and no person namely Velayudhan was arrested. The

investigating officer, PW6 also deposed before the court that it was the

accused, who arrested from the place while effecting the seizure. From

the above materials and evidence, I am of the view that the contention

regarding the identity of the accused is rightly dealt with by the court

and no case is made out to take a different view in favour of the

defence.

9. Another contention raised by the appellant/accused is to the

effect that at the time of trial, M.O. 1 Can contained no contraband

article namely illicit arrack. Therefore, it is the case of the appellant as

well as his counsel that the prosecution has tampered with the evidence

and therefore, accused cannot be convicted. From Exhibit P1, it is

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8

crystal clear that seizure was effected on 27/10/1997 at about 5.45 P.M.

The place of occurrence is a remote village far away from the Excise

Range Office and after the seizure of the contraband article, the Excise

party reached in the Range Office and the articles were entrusted with

the Excise Range Office. From there, on subsequent day along with the

accused, the properties were produced before the court as per Exhibit

P6 property list. In Exhibit P6, it is specifically mentioned that M.O.1

contained 2.62 ml of illicit arrack and the contraband article was

received in the Magistrate Court as per Exhibit P6 property list and the

same was approved by learned magistrate. In the juncture, it is relevant

to note that the sample was drawn from the spot itself and the same was

sent for chemical examination through the court and finally obtained

Exhibit P8 chemical analysis report. Chemical analysis report also

proves that one seized from the possession of the accused is illicit

arrack. Till the time of committal i.e. on 31/10/2000 from the date on

28/10/1997, M.O.1 Can was kept in the committal court. Thereafter,

M.O.1 can was sent to the various courts including the court of

Sessions and finally to the trial court. There is evidence to show that

Crl. A.No. 64 / 2004
9

cap of the Can was kept in tight and there was no lid in M.O.1 Can. It

is also in evidence that the cap was tightened by inserting paper pieces,

which might have been perished in the due course. It is also in evidence

that the seal was intact and the same was not tampered at all. Therefore,

in the above backgrounds, the trial court found that the liquid

contained in the M.O.1 might have been evaporated because of its

volatile nature. Thus, according to the trial court, no bonus can be

given to the defence on that accord. I find no reason to take a different

view deviating from the reasons and conclusion arrived at by the trial

court. Therefore, the finding arrived at by the trial court that the

accused has committed offence which charged against him deserves no

interference and accordingly, the conviction is confirmed.

10. With respect to the sentence, the learned counsel submitted

that even according to the prosecution the quantity alleged to have

possessed by accused is only 3 litres of illicit arrack and he is not a

habitual offender and he is now at the age of 56 years. Therefore, the

counsel prays that lenient view may be taken.

11. On considering the above submissions on merit, I am of

Crl. A.No. 64 / 2004
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the view that certain modification can be brought with respect to the

sentence. It is to be noted that the quantity involved in this case is

about 3 litres of illicit arrack and at the time of trial, the accused was at

the age of 51 years, now he crossed 56 years. Therefore, according to

me imprisonment of one year is sufficient to meet the ends of justice.

Therefore, the sentence of imprisonment is reduced into one year from

5 years. As the fine amount is fixed to the tune of minimum statutory

amount, no interference is called for. But the default sentence is

reduced from one year to one month. Set off is allowed under Section

428 of Cr.P.C.

In the result, the appeal is devoid of merit and the same is

dismissed, but subject to the above modification with respect to the

sentence.

V.K. MOHANAN, JUDGE

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