High Court Kerala High Court

Sukumaran vs State Of Kerala Represented By on 1 June, 2009

Kerala High Court
Sukumaran vs State Of Kerala Represented By on 1 June, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 138 of 2008()


1. SUKUMARAN S/O.RAMANKUTTY, AGED 44 YEARS,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA REPRESENTED BY
                       ...       Respondent

                For Petitioner  :SRI.P.NOOR SEMIR

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :01/06/2009

 O R D E R
                      M.N. KRISHNAN, J.
                       ---------------------------
                CRL.A.NOs.138 & 151 OF 2008
                       ------------------------------
               Dated this the 1st day of June, 2009

                           JUDGMENT

These appeals are preferred against the conviction and

sentence in S.C.No.323/2006 passed by the Additional Sessions

Judge/Special Judge for N.D.P.S. Act cases, Thodupuzha. The

brief facts necessary for the disposal of the appeal are stated

as follows:

2. It is the case of the prosecution that on 18..7.2002 at

about 6 p.m, the officials got reliable information that illicit

arrack was being distilled in Mattappally Teak Plantation and

therefore, they proceeded to the said place and they were able

to see two persons distilling arrack from a distance and on

their sight they attempted to run away. They were followed

and the first accused was arrested and the 2nd accused

escaped from the place. It is the further case of the

prosecution that after arresting the 1st accused, he was

taken to the farm from where they were able to find wash as

well as arrack. Arrack was found being distilled in a bottle

besides being stored in a white plastic can. In the plastic

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barrel, they were able to find 50 liters of wash and the

iron barrels contained 200 liters each filled up with wash.

According to the prosecution, samples of arrack and wash

were collected and sealed in accordance with the rules and

thereafter other liquids were seized and produced before the

court and prosecution initiated.

3. In the trial court, PWs 1 to 5 were examined,

Exts.P1 to P10 and MOs 1 to 11 were marked.

4. On analysis of the evidence, the trial court found the

accused guilty of the offences under Section 55(a) and Sections

8(1) and (2) of the Abkari Act. They were convicted and

sentenced to undergo imprisonment for a period of two years

each and to pay a fine of Rs.One lakh each. Default sentence

for non-payment of the fine was fixed as six months.

5. It is against that decision, the first accused has come

up in appeal as Crl.A.No.151/2008 and the 2nd accused has

come up in appeal as Crl.A.No.138/2008. The points that arise

for determination in these appeals are whether the trial court

has erred in arriving at a decision regarding the guilt of the

accused (2) whether there is anything to interfere with the

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quantum of punishment that has been awarded to the accused.

6. Point No.1:

This point deals with the question of the offence

committed under the provisions of the AbkariAct. It is the

case of the prosecution that the Excise Officials, on getting

reliable information, went to the teak plantation called

Mattappally and from a distance of 15 meters, they saw two

persons illicitly distilling arrack and rushed to the spot.

That two persons escaped and they were chased and the

1st accused was caught hold of. He was arrested and the

illicit arrack was seized. The sample was taken in a bottle

from the white can of arrack and the bottle and the samples

of wash was collected from the other material objects. The

accused were found in custody of 200 liters of wash in iron

barrels and 50 liters in plastic barrels. Illicit arrack was

found in a bottle and a white can. PWs 1 and 2, who were

allegedly to be the eye witnesses for the seizure, turned

hostile and therefore nothing could be elicited from them to

support the case of the prosecution. PW3 is the Preventive

Officer of the Excise Range Office, Kattappana and he had

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given the details. He had spoken about the way in which they

proceeded to Mattappally Teak Plantation, how the accused

were found and how the first accused was apprehended and

also about the factum of the escape by the 2nd accused. He

has clearly deposed that illicit arrack was collected in a

bottle from the material objects used for the distillation of the

arrack. He was able to find 50 liters of brownish liquid,

which was wash, and he had also spoken about the collection

of wash in other barrels as well. It is also his version that in

the white can there was illicit arrack . According to him,

since the bottle and the white can contained illicit arrack,

they were mixed up and sample was taken and so far as

brownish liquid wash is concerned, it was taken from other

containers.

7. Learned counsel for the accused had brought to my

notice the improvements given by the witnesses at the time

of cross examination. In Ext.P1, there is no statement to the

effect that they had understood that A1 and A2 were distilling

illicit arrack. But in cross examination, he would say that he

has known about it. Similarly, it is also stated that how he had

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sealed the bottles. It has to be understood that the first

statement recorded or the mahazar prepared cannot be

treated as an encyclopedia of all the materials relevant for

the purpose of determination of a criminal case. These are all

acts done by the officials in the official capacity and he has

explained in his evidence that though he knew that A1 and

A2 were the persons found distilling, since it was not

confirmed, he did not write it at that time. So far as

sampling and sealing is concerned, these are official acts

which done by the persons. It has also to be remembered

that there was no delay in producing the same before the

court with the forwarding note and the chemical analysis

report also would show that the seal was intact at the time of

receiving for the purpose of chemical analysis. A reading of

the evidence of PW3 inspires confidence in me to believe the

same and it need not be simply brushed aside for the

reasons that they are official witnesses. PW3’s evidence is

cogent and clear and therefore, I do not find any ground to

discard that evidence just because independent witness had

turned hostile, it will not improve the case of the accused.

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8. PW4 is the Assistant Excise Inspector, who had deposed

about the way how he had produced the material objects, the

accused and the documents before the court. He had also

spoken about the forwarding note which is marked as Ext.P9.

The seizure was on 18.7.2002 and the samples and the

accused were produced before the court on 19..7.2002 itself.

So, there is no much delay at all in producing the accused as

well as the material objects in the case.

9. PW5 is the Excise Range Inspector of Kattappana. He

had spoken about the receipt of the chemical analysis report,

which is marked as Ext.P10. It shows that it contains

alcohol. Evidence of PWs 3 to 5 shows about the detection

and finding out of the distillation of illicit arrack and

therefore, I do not find any illegality committed by the court

below in arriving at a decision that the accused have

committed the offences punishable under Section 55(a) and

Sections 8(1) and (2) of the Abkari Act.

10. Point No.2:

Now the next question is regarding the sentence.

Learned counsel for the appellant very persuasively submitted

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before me that they are undergoing imprisonment from

31.12.2007 and besides that they had also undergone remand

during the trial stage and therefore, the court should show

some leniency. The first accused had submitted before the

court that he has a wife, children and the old mother to be

looked after and the second accused had stated that he had

not committed the offence at all. The accused are aged 44

years each and there is nothing before this Court or the court

below to show that they have criminal backgrounds on

previous occasions. Therefore, taking into consideration the

totality of the facts and circumstances, I feel that some

leniency can be shown whereby the sentence of imprisonment

can be reduced to a period of one year each coupled with the

fine of Rs.One lakh and in default, to undergo S.I for a period

of six months.

11. In the result these criminal appeals are disposed of

as follows:

(1) Finding of guilt under Section 55(a) and Sections 8

(1) and (2) of the Abkari Act are sustained.

(2) The conviction and sentence passed by the court

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below is modified and the accused are directed to undergo

imprisonment for a period of one year each for the offence

committed under Section 55 (a) and Sections 8(1) and (2) of the

Abkari Act. They are also directed to pay a fine of Rs.One

lakh each and in default, to undergo S.I for a period of six

months. They are also entitled to set off for the remand

period they had undergone during the trial stage. I make it

clear that the set off can be given to the person, who had

undergone pre-trial remand.

M.N. KRISHNAN, JUDGE

cl

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