IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1059 of 2008()
1. CHANDRAN,
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SMT.SHEELA DEVI(S.B)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :30/06/2008
O R D E R
R.BASANT, J.
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Crl.A.No.1059 of 2008
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Dated this the 30th day of June 2008
JUDGMENT
This appeal is preferred by the appellant aggrieved by the
verdict of guilty, conviction and sentence imposed on him in a
prosecution under Section 8(1) of the Kerala Abkari Act. He
faces the sentence of R.I for two years and a fine of Rs.1,00,000/-
and in default to undergo S.I for six months.
2. The crux of the charge against the petitioner is that
he was found to keep in his house 15 litres of arrack in two
containers MOs 1 and 2 when the police party led by PW3 on
receipt of discreet prior information conducted raid in his
residential premises. The offence was detected by PW3 on
whose report Ext.P7 F.I.R was registered. Investigation was
completed by PW6 and final report was filed by him.
3. Cognizance was taken by the learned Magistrate. The
case was committed to the court of Session. Charges were
framed against the appellant. The appellant denied the offences
alleged against him whereupon the prosecution examined PWs 1
to 6 and proved Exts.P1 to P11.
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4. PWs 1 and 2 are attestors to Ext.P1 seizure mahazer.
They supported the case of the prosecution. PW3 is the
detecting officer. Exts.P2 and P2(a) are the paper slips affixed
by them on MOs 1 and 2. Ext.P3 is the search memorandum.
Ext.P4 is the arrest memo and Ext.P5 is the inspection memo.
Exts.P6 and P7 are the F.I.S and F.I.R registered. Ext.P8 is the
property list under which the properties were sent to the court.
Ext.P9 is the forwarding note and Ext.P11 is the chemical
examiner’s report. PW4 is a neighbour and PW5 is the Secretary
of the Grama Panchayat. Ext.P10 is the ownership certificate
issued by PW5. PW6 has conducted the investigation. PW7
chemical examiner’s report was secured by him after forwarding
the article under Ext.P9 forwarding note. MOs 1 and 2, as stated
earlier, are the containers in which the contraband article was
found available in the house of the petitioner.
5. In the course of cross-examination of the prosecution
witnesses and later when examined under 313 Cr.P.C the
accused denied all circumstances which appeared in evidence
and which were put to him. He took up the stand that PW1 had
motive against him and that police had falsely registered a case
Crl.A.No.1059/08 3
against him. He further contended that no proper
detection/investigation was conducted. He relied on the
discrepancy in his name described in Exts.P4 and P5 arrest
memo and inspection memo. In the course of 313 examination,
he took up a plea which was not advanced by him in the course
of cross-examination of witnesses that he was a worker of the
Marxist party engaged in sand collection work. Persons
belonging to the Kerala Congress ill-disposed to him had
attacked him and had foisted a false case against him. No
defence evidence was adduced.
6. The learned Judge, on an anxious consideration of all
the relevant inputs came to the conclusion that the prosecution
has succeeded in establishing all ingredients of the offence
punishable under Section 8 of the Kerala Abkari Act against the
appellant. Accordingly, the learned Judge proceeded to pass the
impugned judgment.
7. The appellant has preferred this appeal through
prison authorities. Service of a State Brief counsel was made
available to the appellant. The learned counsel for the appellant
has advanced her arguments. The learned counsel for the
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appellant assails the impugned verdict of guilty, conviction and
sentence on the following grounds:
i) The oral evidence of PWs 1 to 3 should have been
discarded by the court below on the ground that they are
interested.
ii) The learned Judge must have held that the steps taken
by PW3 do not inspire confidence at all.
iii) The sentence imposed is at any rate excessive.
8. The prosecution relies on the oral evidence of PWs 1
to 3 as also the contemporaneous seizure mahazer Ext.P1 and
the prompt Ext.P6 F.I.S and Ext.P7 F.I.R to drive home the
charge against the appellant. It is contended that PW1 has
enmity towards the appellant. PW1 had admitted that he had
earlier filed a complaint against the accused. But in the course
of his examination, he had clarified that his only grievance was
that the appellant was carrying on illicit trade in arrack. There
is no suggestion even in the course of cross-examination that
PW1 had any other motive, ill-will or malice against the appellant
except on this alleged ground. PW2’s evidence is also branded
as interested on the ground that he had admitted that he is a
Crl.A.No.1059/08 5
friend of PW1. PW3, it is further contended, is an interested
witness, he being the detecting officer himself. It is argued that
in the light of the fact that he is the detecting officer, his
evidence must be reckoned as interested.
9. I am unable to accept these contentions to throw
overboard the evidence of PWs 1 to 3 as interested and unworthy
of credit. PWs 1 and 2 are persons called by the police officials
when they went on raid. The mere fact that PW1 had earlier
complained to the police about the illicit activity going on in the
house of the appellant is by itself no reason to jump to the
conclusion that the oral evidence of PW1 as also the oral
evidence of PW2, his friend must be discarded. PW3 is the
detecting police official. As such public official, it is his duty to
detect offences and bring the offenders to book. In these
circumstances, the mere fact that PW3 is the detecting police
official, cannot by itself persuade this court to approach his
testimony with any amount of undeserved doubt, distrust or
suspension. The oral evidence of PWs 1 to 3 is eminently
supported by the contents of the contemporaneous Ext.P1
seizure mahazer as also Exts.P6 and P7 – prompt F.I.S and F.I.R
Crl.A.No.1059/08 6
registered by PW3. I am not in these circumstances persuaded
to reject the oral evidence of PWs 1 to 3.
10. Reliance is placed on the incongruity in the
description of the appellant in Exts.P4 and P5. Ext.P1, Ext.P3 as
also Exts.P6 and P7 show the name of the accused person
correctly as Chandran alias Vellayan, S/o. Charley. In Exs.P4
and P5 alone his name is described as Charley alias Vellayan
S/o.Charley. PW3 explained that this was only an accidental slip
and the accused was the appellant herein who was in the dock
and whose name was correctly described in all the other
documents. Though dissatisfied with the error which has crept
into Exts.P4 and P5 while describing the name of the appellant,
that by itself cannot persuade me to throw overboard the entire
case of the prosecution conceding the benefit of a non-existent
doubt in favour of the appellant.
11. Attempt is also made to pick holes in the prosecution
case with the help of the difference in the number of the house
referred to in Ext.P1 and also referred to in Ext.P10. PW6, the
investigating officer has explained the discrepancy and I am
satisfied in the totality of the facts and circumstances of this case
Crl.A.No.1059/08 7
that the case of the prosecution does not deserve to be discarded
on the basis of such discrepancy also.
12. The upshot of the above discussions is that I concur
with the conclusions of the court below that the evidence of PWs
1 to 3 duly supported by Exts.P1, P6 and P7 can safely be
accepted and acted upon to sail to the conclusion that the
detection of the contraband article from the possession of the
appellant herein was made by PW3 in the manner alleged by the
prosecution.
13. The evidence of PWs 1 to 3, if believed, read along
with Ext.P11 chemical examiner’s report satisfactorily
establishes the ingredients of the offence punishable under
Section 8(2) of the Kerala Abkari Act. The verdict of guilty and
conviction do not in these circumstances warrant any
interference.
14. The learned counsel for the petitioner then submits
that leniency must have been shown on the question of sentence.
I find merit in this contention. The sentence of fine imposed is
the minimum permitted by law. I am in these circumstances
satisfied that leniency can be shown on the question of the
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substantive sentence of imprisonment as also in the default
sentence that is imposed.
15. In the result,
a) This appeal is allowed in part.
b) The verdict of guilty and conviction of the appellant
under Section 8(2) of the Kerala Abkari Act are upheld.
c) Sentence imposed on the appellant is modified and
reduced. Substantive sentence of imprisonment is reduced to R.I
for a period of one year. Sentence of fine is upheld. Default
sentence is reduced to S.I for four months.
Communicate this judgment to the court below forthwith.
The court below shall issue revised warrant of commitment.
Communicate the order to the prison authorities and to the
appellant through the prison authorities.
(R.BASANT, JUDGE)
jsr
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Crl.A.No.1059/08 10
R.BASANT, J.
CRL.A.No.1059 of 2008
ORDER
30/06/2008