IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 447 of 2003()
1. MOHANAN S/O. VELAYUDHAN, THADATHIL VEEDU
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY EXCISE
... Respondent
2. PUBLIC PROSECUTOR, HIGH COURT OF
For Petitioner :SRI.S.SUBHASH CHAND
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :17/08/2009
O R D E R
M.N. KRISHNAN, J.
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Crl. Appeal NO. 447 OF 2003
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Dated this the 17th day of August, 2009.
J U D G M E N T
This appeal is preferred against the conviction and
sentence passed by the Addl. District and Sessions Judge,
Adhoc-I, Pathanamthitta in S.C.93/99. The accused was
charge sheeted for offence u/Ss. 8 and 55(a) of the Abkari Act
and was found guilty u/s 55(a) of the Act and convicted
thereunder and sentenced to undergo rigorous imprisonment
for a period of one year and to pay a fine of Rs.1,00,000/- and
in default to undergo further simple imprisonment for a period
of six months. It is against that decision the accused has
come up in appeal.
2. The points that arise for determination are:
(1)Whether the materials are sufficient to convict the
accused u/s 55(a) of the Abkari Act?
(2) In case of guilt, is the sentence excessive?
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Points 1 and 2:
3. Heard the learned counsel for the appellant as well
as the Prosecutor. It is the case of the prosecution that on
17.2.1998 while PW3 and others were on patrol duty they
found the accused with a plastic carry bag. He was
apprehended and when it was examined it was found to
contain 24 similar looking sealed plastic packets. One such
packet was opened and it was tested by smell and taste and it
was found to be illicit arrack. Thereafter that liquid was taken
as sample in a bottle and it was sealed. The remaining 23
bottles along with the container was also tied and seized and it
was produced before Court. Now the learned counsel for the
appellant had argued the case elaborately on the following
points.
4. There is no materials to prove that things had been
done properly in this case. The evidence adduce by the official
witnesses are unsatisfactory and therefore cannot be accepted
and the prosecution has failed to prove that material objects
had been properly sealed and produced before Court.
5. Let me first refer to the documentary evidence in
this matter. Ext.P1 is the seizure mahazar. It would reveal
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that the accused was found in possession of 24 packets out of
which one packet was taken out and tested and thereafter in a
375 ml bottle it was taken as sample and sealed. Rest of the
22 packets were tied and sealed and when the accused was
directed to put his seal he refused to do so. Ext.P3 is the
occurrence report prepared on the basis of the same. Ext.P4
is the list of thondi articles produced before Court. It is seen
produced on 17.2.98 itself and there is an office note which
shows that out of the 24 packets two covers were empty and
it is seen that there is some leakage. Therefore it was
recommended to return it to the Excise officials for production
until further orders. Ext.P2 is a report submitted by the Excise
Inspector wherein he states that the sample was collected and
out of the remaining packets, two packets did show tendency
of leaking and it is opined by him that the packing is
conducted in a unskilled manner.
6. Ext.P5 is the chemical examination report which
would show that it was received as per the requisition of the
Judicial First Class Magistrate, Pathanamthitta through one of
the Excise Guard, Babu and what was received was a bottle
containing 150 ml of clear and colourless liquid and that the
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seal on the bottle was in tact and found tallied with the sample
seal provided. The chemical analyst’s report would reveal that
the said liquid contained ethyl alcohol and it had 27.08% by
volume of ethyl alcohol.
7. Now the learned counsel for the appellant would
contend before me that there was leakage on the cover seized
and only one cover has been alleged to be taken from him for
the purpose of taking sample and therefore these are not leak
proof methods to accept the case of the prosecution. She
would also submit that the evidence of the official witnesses,
PW3 and PW4 are not convincing in that regard. I had gone
through the evidence of PWs.3 and 4.
8. PW3 is the excise Inspector who had conducted the
search and had taken sample of the liquid possessed by the
accused. He had deposed before Court that by taste and smell
it was found to be alcohol and thereafter in a 375 ml bottle
sample was taken and the other covers of 150 ml capacity also
contained illicit arrack. He had been cross examined at length.
But I do not find any material irregularities or contradictions in
the evidence of these witnesses. It is true that two bottles
were found to be empty by the Court officers when it was
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produced before Court. The office itself has recorded that
there was leakage and that is why office recommended the
learned Magistrate to return the covers to the Excise officials
for safe custody. It is submitted that only one packet had
been opened and examined. Now it is a settled principle that
when there are similar types of packets there is no imperative
rule that sample should be taken from every packet and to be
sent for chemical analysis. He had also stated that there was
seal of CW1 and no label. PW4 is the circle inspector of police.
He had deposed before Court that the accused was only
having one hand and was possessing plastic cover in his left
hand. He was apprehended and the covers were seized,
sample was taken and sealed and produced before Court. It is
also deposed by him though the accused was directed to put
his signature he would submit that he had not signed it at all.
In the cross examination it is submitted by him that requisition
has been forwarded to the Court and that label has been
pasted in MO1 and the accused and the witnesses had signed
in that label and it is also submitted that in MO1 it is still seen,
MO1
………………………………………………………………………..”
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It is also deposed by him that the marks of the seal affixed by
him is seen in MO1. So now the learned counsel would
contend that PW3 had stated that there was no label but says
PW4 would state that there was a label. It has to be
remembered that the incident took place on 17.2.1998 and
the witnesses are examined after four and half years. PW4
then would depose that the label was there and it contains
signatures of the accused as well as the witnesses and
deposed before Court that the signature in MO1 is seen even
at the time of the examination and that the mark of the seal is
also visible in MO1. Just because PW3 had not given a version
regarding the label that it does not mean that it is conflicting
and it cannot be accepted at all. So the evidence of PW3 and
4 would convincingly establish the following.
9. That they have apprehended the accused, they had
examined him and found out 24 packets of 150 ml illicit arrack
out of which one packet was taken as sample put in a 375 ml
bottle and had sealed it and had also taken possession of the
remaining 23 packets tied it, sealed it and labeled it and
produced it before Court on the very same day, i.e. on
17.2.1998. I think there is absolute compliance of the
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procedural formalities as well in this case.
10. It is true that independent witnesses had turned
hostile. In the decision reported in Sivaraman v. State of
Kerala (1981 KLT S.N. Case No.17 page 9) the Court
observed that independent witnesses are turning hostile for
the reasons best known to them. The Court thereafter
proceeded to consider whether in such circumstances the
evidence of the official witnesses can be accepted. The Court
only cautioned that the evidence of those witnesses had to be
meticulously scrutinized and when on consideration it is found
to be reliable and acceptable there is nothing standing in the
way of the Court in accepting that evidence as well. So the
evidence of PWs.3 and 4 is acceptable and they have no axe to
grind against the accused. So as discussed by me earlier
procedural formalities are properly complied with in this case
and therefore the finding of guilt u/s 55(a) of the Abkari Act
cannot be interfered with and it is sustained.
11. Now turning to the question of sentence. The Court
below has convicted the accused and sentenced him to
undergo rigorous imprisonment for a period of one year and
to pay a fine of Rs.1,00,000/- and in default to undergo six
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months imprisonment further. The accused was found to be in
possession of 3.600 litres of arrack. When questioned u/s 313
he had submitted that he has got his wife and two children
and aged mother to be looked after and there is no other
source of income and therefore he should be a pardoned.
Taking into consideration the quantum involved and the other
circumstances of the dare consequence that may have to be
faced by the members of the accused’s family I am inclined to
show leniency towards the sentence. I think justice can be
met by directing him to undergo simple imprisonment for a
period of four months and to pay a fine of Rs.1,00,000/- and
in default to undergo a further imprisonment for a period of
two months.
In the result the Crl.Appeal is disposed as follows:
1) Finding of guilt u/s 55(a) of the Abkari Act is
sustained.
2) The sentence is modified and the accused is
sentenced to undergo simple imprisonment for a period of
four months and to pay a fine of Rs.1,00,000/- and in default
to undergo simple imprisonment of two months.
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4) The accused is entitled to entitled to set off as
contemplated under S.428 Cr.P.C.
5) The lower Court shall execute the sentence.
M.N. KRISHNAN, JUDGE.
ul/-
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M.N. KRISHNAN, J.
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Crl.A. No. 447 OF 2003
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J U D G M E N T
17th August, 2009