High Court Kerala High Court

Sabu vs State Of Kerala on 21 December, 2009

Kerala High Court
Sabu vs State Of Kerala on 21 December, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 726 of 2009(A)


1. SABU, C.NO.3360,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA
                       ...       Respondent

                For Petitioner  :MANSOOR.B.H[(STATE BRIEF)

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :21/12/2009

 O R D E R
                         V. RAMKUMAR , J.
           -------------------------------------------------------------
                         Crl. A No. 726 of 2009
            ------------------------------------------------------------
           Dated this the 21st day of December, 2009.

                               JUDGMENT

In this appeal preferred from the Central Prison,

Thiruvananthapuram the appellant (Sabu) who was the accused

in S.C. No. 459 of 2007 on the file of the Additional Sessions

Court (Adhoc -II), Thodupuzha, challenges the conviction entered

and the sentence passed against him for an offence punishable

under Section 8(2) of the Kerala Abkari Act.

2. The case of the prosecution is that on 30.06.2007, at

about 8.10 p.m., on the road near the Christian Church at

Murikkattukudy in Kozhimala Kara of Idukki District, the

accused was found selling illicitly distilled arrack in

contravention of the provisions of the Abkari Act and he has

thereby committed an offence punishable under Section 8(2) of

the Abkari Act.

3. On the appellant pleading not guilty to the charge

framed against him by the court below for offences punishable

under Sections 8(2) and 55(i) of the Abkari Act, the prosecution

was permitted to adduce evidence in support of its case. The

Crl. A. No. 726/2009 : 2 :

prosecution altogether examined 4 witnesses as P.Ws 1 to 4 and

got marked 6 documents as Exts. P1 to P6 and 3 material

objects as MOs.1 to 3.

4. After the close of the prosecution evidence, the

accused was questioned under Sec. 313 (1)(b) Cr.P.C. with

regard to the incriminating circumstances appearing against him

in the evidence for the prosecution. He denied those

circumstances and maintained his innocence.

5. The court below did not record an order of acquittal of

the appellant under Section 232 Cr.P.C. The appellant did not

adduce any defence evidence when called upon to do so.

6. The learned Addl. Sessions Judge, after trial, as per

judgment dated 23.10.2008 acquitted the appellant of the

offence punishable under Section 55(i) of the Act, but convicted

him of the offence punishable under Section 8(2) of the Abkari

Act. For the said conviction, he was sentenced to rigorous

imprisonment for two years and to pay a fine of Rs.1,00,000/-

and on default to pay the fine, to undergo simple imprisonment

for six months. It is the said judgment which is assailed in this

appeal preferred from the Central Prison, Thiruvananthapuram.

Crl. A. No. 726/2009 : 3 :

7. I heard Adv. Shri. Mansoor B.H., the learned counsel

appearing for the appellant on State Brief and the learned Public

Prosecutor, Shri. B. Jayasoorya.

8. The only point which arises for consideration in this

appeal is as to whether the conviction entered and the sentenced

passed against the appellant are sustainable or not.

9. The point:-

PWs 1 to 3 are the independent witnesses cited by the

prosecution to prove the detection, search and seizure. These

witnesses turned hostile to the prosecution. PW4, the Sub

Inspector of Police, Kattappana was the Detecting Officer. His

evidence is to the following effect:-

10. On 30.06.2007, PW4 along with his police party was

conducting law and order patrol duty at places called Kanjiyar,

Murikkattukudy etc. While the police party reached the

southern side of the cemetery of the Christian Church at

Murikkattukudy, he got a credible secret information to the

effect that a person by name Sabu of Karappara House was

engaged in the illicit sale of arrack. Accordingly, PW4 along

with his police party proceeded to the said spot at about 7.50

Crl. A. No. 726/2009 : 4 :

p.m. On reaching the said spot, they came across the appellant

holding a white jerry can of 5 litre capacity in one hand and a

glass tumbler in the other. The appellant was restrained and the

liquor found in the jerry can was tested by smelling and tasting

the same to find that it was arrack. The total volume of arrack in

the can was found to be about 3 litres. After drawing two

samples each of 180 ml. in two separate bottles and sealing the

same, PW4 arrested the accused and seized the contraband

liquor and the sample bottles under Ext.P1 mahazar to which

PWs 1 to 3 had affixed their signatures. The appellant along

with the properties and the seizure documents were then taken

to the Kattappana Police Station from where PW4 registered a

case as Crime No. 380 of 2007 under Section 8(2) of the Abkari

Act. Ext.P4 property list shows that the properties along with

the samples were produced before the Judicial First Class

Magistrate, Kattappana on 09.07.2007. The sample bottles were

in a sealed condition on the date of their production. During the

course of investigation, PW4 submitted the original of Ext.P5

forwarding note requesting the forwarding of one sample bottle

to the Chemical Examiner for analysis. The said request was

Crl. A. No. 726/2009 : 5 :

complied with by the Magistrate by forwarding one sample bottle

along with his covering letter dated 07.08.2007 to the office of

the Chemical Examiner, Ernakulam. The sample was received by

the Chemical Examiner with the seals-in-tact. On analysis, the

sample bottle was found to contain 35.22 percent by volume of

ethyl alcohol.

11. The learned counsel appearing for the appellant

submitted that since all the three independent witnesses to the

detection, search and seizure turned hostile to the prosecution

and also since there is only the interested testimony of the

Detecting Officer examined as PW4, it will be unsafe to convict

the appellant.

12. I am afraid that I cannot agree with the above

submission. It is true that the independent witnesses to the

Mahazar had turned hostile to the prosecution. But, such

disloyalty shown by independent witnesses is not uncommon to

the courts trying such offenders. (vide Sivaraman v. State of

Kerala – 1981 KLT SN 9). The testimony of PW4 is free from

any doubt or blemishes. No sort of enemity or oblique motive

has been attributed to PW4. Hence, his evidence regarding the

Crl. A. No. 726/2009 : 6 :

detection, search and seizure, is quite credible. The very fact

that MO3 glass tumbler was seized from the appellant along with

MO1 jerry can containing the bulk quantity of arrack as

confirmed in Ext.P6 report, shows that the appellant was

possessing the arrack for the purpose of sale. By virtue of

prohibition contained in Section 8(1) of the Abkari Act, it was not

permissible for the appellant to possess or carry arrack,

whatever may be its quantity, since arrack has been totally

banned in the State with effect from 03.06.1997. Hence, the

court below was fully justified in recording an order of conviction

under Section 8(2) of the Abkari Act and the same is hereby

confirmed.

13. What now survives for consideration is the adequacy or

otherwise of the sentence imposed on the appellant. The court

below has imposed a sentence of rigorous imprisonment for two

years and to pay a fine of Rs.1,00,000/-. As observed earlier,

arrack has been banned in the State with effect from 03.06.1997.

There was, therefore, absolutely no justification for the appellant

to carry any quantity of arrack. Here, he was found to carry

three litres of arrack and the fact that MO3 glass tumbler was

Crl. A. No. 726/2009 : 7 :

seized from him shows that it was evidently intended for sale

which is prohibited under Section 8(1) of the Abkari Act. It was

noticing that this liquor has deleterious effect on the human

system, besides breaking so many families, that the Government

imposed the total ban on arrack in the State with effect from

03.06.1997. Having regard to the adverse effect of the drink on

human beings and also having regard to the fact that the offence

is punishable up to 10 years of imprisonment and a fine of Rs.2

lakhs, I am not persuaded to hold that the sentence imposed on

the appellant is excessive or disproportionately harsh.

Accordingly, the sentence imposed on the appellant is also

hereby confirmed.

In the result, this appeal is dismissed confirming the

conviction entered and the sentence passed against the

appellant.

Dated this the 21st day of December, 2009.

V. RAMKUMAR, JUDGE.

rv

Crl. A. No. 726/2009 : 8 :

V. RAMKUMAR, J.

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Crl. Appeal No. 726 of 2009

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21st day of December, 2009.

JUDGMENT

Crl. A. No. 726/2009 : 9 :