IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 2363 of 2008()
1. KAMALASANAN, C.NO.2884,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :PREATHA P.S.(STATE BRIEF)
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.
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Crl. A. No. 2363 of 2008
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Dated this the 18th day of December, 2008
JUDGMENT
This is an appeal preferred by the sole accused in Sessions Case
No.396/2002 from the jail, where he is undergoing imprisonment in
pursuance of the impugned judgment. As per the impugned judgment,
the accused was convicted under Section 55(a) of the Abkari Act and
accordingly, he was sentenced to undergo Simple imprisonment for
two years and to pay a fine of Rs.1,00,000/-.
2. The prosecution case is that on 22/06/1999 at about 6.30
P.M, the accused was found in possession and engaged in the sale of 3
liters of arrack in a Jerry Can and accordingly, the accused was
arrested from the spot with contraband article, the container and also
with a drinking glass. Thus according to the Police, the accused has
committed the offence under Sections 55(a) and (i) of Abkari Act. On
the basis of the above allegation, Crime No.218/1999 was registered in
the Ehzhukone Police Station and investigation was undertaken and
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the final report was filed in the Judicial First Class Magistrate Court at
Kottarakkara, thereupon C.P. No.59/2001 was instituted. As per order
dated 25/06/2001 in C.P. No.59/2001, the learned magistrate
committed the case to the Sessions Court and the Sessions Case made
over it to the Assistant Sessions Court, Kottarakara. Thereafter, the
case was transferred to the trial court for disposal. When the accused
appeared, after hearing him and the Public Prosecutor, a formal charge
was framed under Sections 55(a) & (i) of the Abkari Act, which read
over and explained to the accused and he pleaded not guilty.
Thereafter, the prosecution adduced evidence consists of oral evidence
of PWs 1 to 3 and documentary evidence such as Exhibits P1 to P5.
M.Os.1 to 3 were identified and marked as material objects. There
was no evidence, either oral or documentary from the side of the
defence. After completion of prosecution evidence, the accused was
questioned under Section 313 of the Cr. P.C. and put to him all the
incriminating evidence brought out by the prosecution, and he denied
the same. The accused took the stand of total denial. After hearing the
case on merit, the trial court found that the accused is guilty under
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Section 55(a) of the Abkari Act and accordingly he was sentenced to
undergo Simple Imprisonment for a period of two years and to pay a
fine of Rs.1,00,000/-. He was further directed to undergo Simple
Imprisonment for 6 months more, in case of default in the payment of
fine amount. It is the above conviction and sentence challenged in this
appeal.
3. As the appellant/accused is undergoing imprisonment and
the appeal is preferred from the jail. State Brief was appointed and I
heard the counsel appointed as State Brief and also the learned Public
Prosecutor.
4. PW3 is the Sub Inspector of Police, the officer who
detected the offence and PW2 is the Police Constable, who
accompanied PW3 at that time. According to PW3, that on 22/06/1999,
while he was travelling on patrol duty along with the police party, he
got information that the accused engaged in the sale of arrack by
standing in the Sugarcane plantation owned by one Janardhana Pillai.
When they reached the Sugarcane plantation, found the accused
standing there by holding M.O.1 Jerry Can and M.O.3 drinking glass.
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Thus, PW3 deposed that the accused was intercepted and on
questioning him in the presence of witnesses, he found that the Can
contained about 3 litres of arrack. Accordingly, the illicit arrack was
seized as per Exhibit P1 Mahazar and accused was arrested at 6.30
P.M. Exhibit P2 is the arrest memo. He returned to the Police station
and registered Crime No.218/1999 of Exhukone Police station for the
offence under Sections 55(a) and (i) of the Abkari Act. Exhibit P3 is
the F.I.R.. The accused and the contraband articles were produced
before the Court. Exhibit P4 is the 151 A form prepared and proved by
PW3. Since there was no sufficient space in the court, the articles
returned to the police for the safe custody. Subsequently, PW3
submitted requisition before the court below for sending the sample for
chemical analysis and accordingly, obtained Exhibit P5 report. He had
questioned the witnesses and recorded their statements. During the
trial, he had identified M.Os. 1 to 3. PW2 also deposed in terms of
prosecution case as that of PW3. The independent witness PW1 is an
attestator to Exhibit P1, mahazar and on his examination he had
deposed that he did not know the accused but he has admitted his
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signature in Exhibit P1. On the basis of above evidence of
prosecution, the trial court found that the accused is guilty under
Section 55(a) of the Abkari Act.
5. Learned counsel for the appellant submits that the accused
was falsely implicated in the crime and the scene of occurrence is not
properly proved by the prosecution. It is pointed out that though the
articles were seized on 22/06/1999, the same were produced before the
court only on 28/07/1999 and hence there is an unexplained delay,
during which the evidence have been tampered. Therefore, according to
defence and learned counsel for the appellant, the prosecution has
failed to establish and prove its case beyond reasonable doubt.
6. Learned Public Prosecutor submitted that the prosecution
has established the case with sufficient materials and evidence. It is his
submission that testimony of PWs 2 and 3 together with Exhibits P1,
P4 and P5 would reveal that the sample was collected from the spot
itself and the same was sent for chemical analysis and obtained Exhibit
P5 report, which would show that the sample contained Ethyl Alcohol
at 45.63% by volume and according to the Prosecutor, the prosecution
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has thus correctly proved that the accused was in possession of the
contraband article.
7. I have carefully gone though the evidence of PWs 2 and 3
and also documentary evidence such as Exhibits P1, P4 and P5. The
only case put forward by the accused is to the effect that there was a
delay in reaching the contraband articles in the court. It is also the case
of the defence that the accused was implicated in the crime falsely at
the instance of his employer, where the accused was employed and
crime was registered at the instance of the said employer. Though,
such a plea was taken, no evidence was adduced by the defence and no
attempt was made to make out the case from the prosecution evidence
also. Regarding the delay in reaching the articles before the trial court,
it is to be noted that as per prosecution case, the accused was found in
possession of the contraband articles and the articles were seized then
and there. Subsequently, the sample was taken from the M.O.1 Can,
which contained the contraband article. Such sample was sent for
chemical analysis through the court and thereafter obtained Exhibit P5
report. So the seizure is proved beyond doubt and also proved that
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what seized from the possession of the accused is the contraband
article, namely, the illicit arrack. It is true that there is some delay in
reaching the article in the court. The said delay in no way can be
described as a culpable delay. Though the accused has challenged the
delay, nothing has brought on record to show that the delay was
caused any prejudice to the accused. Every delay need not be
prejudicial, unless it is proved that such delay caused prejudice to the
accused. Therefore, the contention based upon the delayed receipt of
contraband articles is devoid of any merit. It is to be noted that all these
points were elaborately considered by the court below and all these
contentions rejected by the court below by assigning cogent reasons.
No ground is made out to take a different view from that of the trial
court. Consequently, the conviction is confirmed.
8. With respect to the sentence, it is submitted that the
quantity involved is only three liters of illicit arrack, but the sentence
imposed is disproportionate and exorbitant. It is also submitted that the
appellant/accused is not involved in any other similar crime and
therefore a lenient view may be taken.
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9. I have carefully considered the above submission. In view
of the particular facts and circumstances involved in this case, I am of
the opinion that certain modification can be made with respect to the
sentence. In the result, the sentence of imprisonment of two years
awarded is reduced to six months for the offence under Section 55(a) of
the Abkari Act. With respect to the sentence of fine, no interference is
called for, because only the minimum amount fixed by the statute is
imposed against the accused. But the default sentence according to me
can also be reduced from six months to two months. Set off is allowed
under Section 428 of Cr.P.C.
10. As per the records, it is seen that the accused had been in
custody for 38 days as under trial prisoner, from the date of his arrest
till the release on bail. After the impugned judgment also that is from
3/05/2008 onwards he is undergoing imprisonment. As the sentence
has already modified and reduced and set off allowed under Section
428 of Cr.P.C., the appellant/accused is entitled to get released from the
jail. Therefore, there will be a direction to release the appellant/accused
forthwith, if he is not required in any other case.
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In the result, the appeal is disposed of confirming the conviction
and reducing the sentence as indicated above and directing to release
the appellant forthwith as he had already undergone the modified
sentence.
V.K. MOHANAN, JUDGE
scm