IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1184 of 2002()
1. ROY, S/O. VELATHIPARAMBIL OUSEPH,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent : No Appearance
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :09/09/2009
O R D E R
THOTTATHIL B.RADHAKRISHNAN, J.
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Crl.A.No.1184 OF 2002
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Dated this the 9th day of September, 2009
JUDGMENT
1.Convicted for offences punishable under Sections 55(i) and 58
of the Abkari Act, the appellant stands sentenced to undergo
rigorous imprisonment for two years and to pay a fine of
Rupees One Lakh, in default, to undergo rigorous
imprisonment for six months, under each of the aforesaid two
counts. Concurrence in sufferance is also ordered.
2.The allegation is that, apprehended by PW1 Excise Preventive
Officer, from behind a tea shop of Kolamkanny Ouseph at
about 5.30 p.m. on 20.10.1998, the accused was found to be in
possession of a plastic bag with 4 bottles of 750 ml each,
containing illicit arrack, for sale. Hence, he was charged of
having committed offences under Sections 8(1) and (2) of the
Abkari Act. On committal, the Court of Session framed charge
of commission of offences under Sections 55(i) and 58 of the
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Abkari Act. The accused pleaded not guilty. His defence was
one of total denial.
3.PW1, the detecting officer, was examined. PW4, the Excise
Guard and PW5 the Excise Inspector, to the extent they do,
corroborates the version of PW1. Chemical analysis report
and other exhibits corroborates the version of PW1 regarding
the search, seizure, sampling and the result of the chemical
analysis. PWs.2 and 3, independent witnesses, cited to prove
the seizure mahazar, turned hostile. Assimilating the
evidence, the Court of Session concluded that the prosecution
succeeded in proving that the accused committed the offences
punishable under Sections 55(i) and 58 of the Abkari Act.
Accordingly, he was held guilty, convicted and sentenced.
4.Learned counsel for the appellant argued that the conviction
under Section 55(i) could not have been made at all in as much
as, according to him, there is no legal evidence on record, on
the basis of which, it could be inferred that the seized material
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was sold or stored for sale. The plea is that there is neither
any corroborating oral evidence or seizure of any other
material which may justify the conclusion as to the possibility
of the storage of the material for sale. So much so, it is
contended that though storing for sale, by itself, may be
sufficient to attract Section 55(i), there is no shred of legal
evidence on which the conviction could sustain on that count.
It was also argued that the scene mahazar contains an
interpolation apparently attempting to show that it was got
signed by the accused also.
5. In so far as the conviction under Section 58 is concerned, it
was argued on behalf of the accused that there was no
corroborating material in support of the version of PW1,
particularly when PWs.2 and 3 had turned hostile. It is further
argued that even if the conviction under Section 58 were to
stand, the sentence imposed is highly excessive and deserves
to be trimmed down particularly when the accused is, as stated
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by him before the learned Sessions Judge, one who has a
family consisting of a wife and others to maintain.
6.Learned Public Prosecutor argued that to sustain the
conviction under Section 55(i), it is unnecessary to establish
that the accused was involved in selling liquor and that, in so
far as the allegation that he had stored the liquor for sale is
concerned, the evidence of PW1 that while patrolling, he got
information about the accused being involved in such
transactions in the scene of occurrence in question, is
sufficient material to conclude that the offence under Section
55(i) has also been committed. It is further argued that error,
if any, on the face of the scene mahazar was explained by PW1
and the said officer has also spoken about the seizure. He
further argued that the quantity recovered, viz., 4 bottles of
750 ml each and the recovery of a jerry can from a nearby
bush as shown by the accused, are sufficient corroborative
materials to sustain the conviction under Section 55(i). It was
also argued that there was no ground to interfere with the
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conviction under Section 58 and the sentence imposed on
both counts cannot be treated as excessive having regard to
the fact that the offence is in relation to a banned substance
and also because it results in an activity which is essentially
anti-social and having impact on health of the consumers.
7.PW1, the detecting officer, spoke in terms of the allegations
levelled against the accused. The information regarding the
activity of sale of illicit liquor from the scene of occurrence as
available to PW1 during patrol duty was also spoken to by
him. Though not specifically cross examined on the issue
regarding the source of that information, the evidence of PW1
was that he remained in the jeep and two other officers had
earlier confirmed the activity attributed to the accused. The
scene of occurrence is stated to be behind a tea shop. The
owner of the tea shop is not a witness. The witnesses cited to
prove the drawing up of the mahazar turned hostile, though
they admitted their signatures in the mahazar. This means
that their evidence could be used only to the extent of proving
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the mahazar. The time of search, seizure and arrest is 5.30
p.m. It has to be reasonably assumed that there could have
been other independent persons available in the locality. The
mahazar also does not disclose the presence of any other
person. On the whole, the evidence on record is insufficient to
hold that the charge under Section 55(i) that illicit liquor was
possessed for sale is established beyond doubt.
8.On to the conviction under Section 58, it needs to be noted
that the evidence of PWs.1, 4 and 5 corroborated by the
documentary evidence on record categorically proved the
search, seizure and arrest and the nature of the material
seized. The chemical analysis report is beyond challenge. No
personal animosity or any other vitiating element is suggested
as against PW.1, 4 and 5. The accused person does not put
any particular defence in his statement under Section 313
Cr.PC, except a total denial. With the materials on record, the
court below was wholly justified in concluding that the accused
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had committed the offences punishable under Section 58 of
the Abkari Act.
9.Having seen that the accused is not proved to be guilty under
Section 55(i), the conviction to that extent needs to be set
aside. The conviction under Section 58 stands.
10.On the question of sentence, the accused was 31 years old at
the time of occurrence. His occupation, as recorded by the
court below, shows that he was a coolie. Then he had to
maintain his wife and child. With the passage of time, the
learned counsel for the petitioner states that he would have
reformed himself, if at all there could be any attribute of any
tendency to commit such wrong. But, the mere passage of
time, with case pending before the courts, is no ground by
itself to reduce sentence. That, in fact, should not have a
marked impact on the sentencing policy of courts. Taking into
consideration the age of the accused at the time of occurrence,
the social strata from which he comes and the quantity of illicit
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arrack recovered from him and also the finding that it has not
been proved that he possessed the material for sale, I deem it
justifiable to sustain the fine of Rupees One lakh imposed
under Section 58, but modify the sentence of imprisonment
imposed under that Section to be to undergo rigorous
imprisonment for nine months.
11.In the result, in modification of the order of conviction and
sentence imposed by the court below, it is ordered that:
(i) The conviction under Section 55(i) of the Abkari Act is
set aside and the accused is acquitted of the charge on that
count.
(ii) The conviction under Section 58 of the Abkari Act is
confirmed.
(iii) The sentence imposed by the court below is vacated
and the accused is sentenced to undergo rigorous
imprisonment for nine months and to pay fine of
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Rs.1,00,000/-. Any amount already deposited in terms of
the interim orders will be given due credit to.
The learned Magistrate shall take necessary steps for
execution of the modified sentence hereby imposed. The
appellant shall appear and his sureties shall produce him before
the Judicial Magistrate of First Class, Irinjalakuda 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.PC., if he does not appear as directed above.
Sd/-
THOTTATHIL B.RADHAKRISHNAN,
Judge.
kkb.19/9.