IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 64 of 2004()
1. CHEKKUTTY,
... Petitioner
Vs
1. THE EXCISE INSPECTOR, MANJERI.
... Respondent
2. STATE OF KERALA,
For Petitioner :SMT.T.J.SEEMA
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. 64 of 2004
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Dated this the 18th day of December, 2008
JUDGMENT
This appeal is preferred by the sole accused in S.C No.360/2000
on the file of the Additional District and Sessions Judge (Adhoc) Fast
Track Court No.1, Manjery challenging his conviction and sentence
under Section 55(a) of the Abkari Act.
2. The prosecution case is that on 27/10/1997 at about 5.45
P.M, the accused was found in possession of 3 litres of illicit arrack in
a white Can having capacity of 5 litres at Vettathur Desom and thereby
committed an offence punishable under Section 55(a) of the Abkari
Act. On the basis of said allegation, Crime No.24/1997 was registered
in the Excise Range, Manjery. On completion of investigation, charge
was laid before the Judicial First Class Magistrate Court, Malappuram,
wherein C.P.No.55/2000 was instituted. Learned magistrate as per his
order dated 31/10/2000 in C.P. No. 55/2000 committed the case to the
Sessions Court. Sessions Court made over the case to the trial court
for disposal.
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3. On appearance of the accused, charge was framed, which
was read over and explained to him. He pleaded not guilty, which
resulted in the further trial of the case, during which PWs 1 to 6 were
examined and Exhibits P1 to P8 were marked from the side of the
prosecution. M.O.1 Can was identified and marked as material object.
The accused was questioned under Section 313 of Cr.P.C. and he
denied all the incriminating circumstances came out in evidence. He
took the stand of total denial. No evidence was adduced from the side
of the accused. The trial court after considering the evidence of both
prosecution as well as defence, came to the conclusion that the accused
has committed the offence charged against him and accordingly he was
convicted under Section 55(a) of the Abkari Act. Consequently, after
hearing the accused, he was sentenced to undergo Rigorous
Imprisonment for 5 years and to pay a fine of Rs.1,00,000/-. He was
further directed to undergo Simple Imprisonment for a further period
of one year, in case of default in the payment of fine amount. It is the
above conviction and sentence challenged in this appeal.
4. I have heard learned counsel appearing for the appellant as
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well as the Public Prosecutor.
5. The main contention advanced by the counsel is that the
M.O.1 Can was not seized from the appellant. Therefore, the appellant
was falsely implicated by PW1. According to the learned counsel, the
appellant was called upon to sign some papers by the Excise Party and
as well as PWs 3 and 4 were asked to affix their signatures on some
papers. It is also the case of the counsel that, in fact, the crime was
registered against one Velayudhan and not against the appellant and it
was Velayudhan, who was taken into custody along with the
contraband articles. Thus accordingly, the accused is falsely implicated
in the above crime. There is no independent evidence to corroborate the
evidence of the witnesses. Therefore, according to the counsel, the
conviction and sentence passed by the court is liable to be set aside. It
is also the case of the counsel that M.O.1 which produced before the
court did not contain any liquid. Therefore, the possibility of tampering
cannot be proved. According to the learned counsel, the story of the
prosecution that 2 litres and 625 ml of illicit arrack were evaporated,
cannot be swallowed without a pinch of salt. Thus according to the
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learned counsel, the appellant/accused is entitled to get the benefit of
doubt. It is also the case of the counsel that the sentence imposed is
disproportionate and exorbitant.
6. Learned Public Prosecutor submitted that there was no
serious attack from the part of defence against the seizure and to the
evidence of the departmental witnesses. It is also submitted by the
Public Prosecutor that points raised in this appeal has already been
dealt with by the trial court and by assigning convincing reason, the
trial court rejected those contentions and found that the accused is
guilty of the charge levelled against him. Thus, according to the
learned Public Prosecutor, no ground is made out to interfere with the
order of conviction passed by the court below.
7. I have carefully considered the contentions advanced by
both the counsel for the appellant as well as Public Prosecutor and also
perused the evidence and materials on record. PWs.1 and 2 are the
main official witnesses cited and examined by the prosecution to
prove the allegation against the accused. PWs 1 and 2 in the
depositions categorically stated that while they were on patrol duty
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along with Excise party around Cheruvayoor-Vattathur and while they
were proceeding towards Mannattu side from Vettatur, the accused
was found carrying M.O.1 Can in front of the tea shop, on the road
side. On some doubt, the accused was intercepted and examined the
contents of M.O. 1 Can by smelling and tasting and found that contents
were illicit arrack. Thus, as per Exhibit P1 mahazar, the M.O. 1 Can
and the contents therein were seized in the presence of independent
witnesses and sample was drawn then and there. Though PWs 1 and 2
were cross examined, nothing was brought to disbelieve their version.
It is true that the independent witnesses mainly PWs 3 and 4 were cited
and examined to prove the seizure of sample of the illicit arrack, were
turned hostile. It is to be noted that though PWs 3 and 4 were turned
hostile, they have admitted their signature in Exhibit P1, mahazar.
During admitting the signature in Exhibit P1 mahazar, they have also
deposed that they put their signature in the presence of PWs 1 and 2
and the accused, at the place of occurrence. Normally, there is no legal
bar to accept the evidence of official witnesses and to use the same to
convict the accused. If evidence of such official witnesses are not free
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from contradiction or doubt, naturally the court will in loath accepting
such evidence unless the same is corroborated from independent
evidence. In the present case, absolutely there is no contradiction or
infirmity or doubt regarding the veracity of the depositions of PWs.1
and 2. PWs 3 and 4 though turned hostile, deposed that they put their
signature at the spot in the presence of accused as well as PWs. 1 and
2. Thus, the prosecution has succeeded in establishing and proving the
seizure of illicit arrack about 3 litres from the possession of the
accused.
8. One of the contentions taken by learned counsel for the
appellant is that the contraband article was not seized from the
possession of the accused, on the other hand the same was effected
from the possession of one Velayudhan. The above submission was
made on the basis of the name happened to be shown in Exhibit P1 and
other documents. The explanation offered by PWs 1 and 2 is to the
effect that the father’s name of the accused is Velayudhan and while
repeating the name of the accused in the documents, the name
Chekkutty is omitted and it is only a clerical mistake. On perusal of
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Exhibit P1, which is a contemporaneous document, it can be seen that
according to prosecution, the seizure was effected from the possession
of Chekkutty, S/o. Velayudhan, the accused. It is also in evidence that
the accused is the person taken into custody from the spot along with
the contraband article. Evidence of PWs 1and 2 further show that it was
the accused Chekkutty, who arrested from the spot with the contraband
article and no person namely Velayudhan was arrested. The
investigating officer, PW6 also deposed before the court that it was the
accused, who arrested from the place while effecting the seizure. From
the above materials and evidence, I am of the view that the contention
regarding the identity of the accused is rightly dealt with by the court
and no case is made out to take a different view in favour of the
defence.
9. Another contention raised by the appellant/accused is to the
effect that at the time of trial, M.O. 1 Can contained no contraband
article namely illicit arrack. Therefore, it is the case of the appellant as
well as his counsel that the prosecution has tampered with the evidence
and therefore, accused cannot be convicted. From Exhibit P1, it is
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crystal clear that seizure was effected on 27/10/1997 at about 5.45 P.M.
The place of occurrence is a remote village far away from the Excise
Range Office and after the seizure of the contraband article, the Excise
party reached in the Range Office and the articles were entrusted with
the Excise Range Office. From there, on subsequent day along with the
accused, the properties were produced before the court as per Exhibit
P6 property list. In Exhibit P6, it is specifically mentioned that M.O.1
contained 2.62 ml of illicit arrack and the contraband article was
received in the Magistrate Court as per Exhibit P6 property list and the
same was approved by learned magistrate. In the juncture, it is relevant
to note that the sample was drawn from the spot itself and the same was
sent for chemical examination through the court and finally obtained
Exhibit P8 chemical analysis report. Chemical analysis report also
proves that one seized from the possession of the accused is illicit
arrack. Till the time of committal i.e. on 31/10/2000 from the date on
28/10/1997, M.O.1 Can was kept in the committal court. Thereafter,
M.O.1 can was sent to the various courts including the court of
Sessions and finally to the trial court. There is evidence to show that
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cap of the Can was kept in tight and there was no lid in M.O.1 Can. It
is also in evidence that the cap was tightened by inserting paper pieces,
which might have been perished in the due course. It is also in evidence
that the seal was intact and the same was not tampered at all. Therefore,
in the above backgrounds, the trial court found that the liquid
contained in the M.O.1 might have been evaporated because of its
volatile nature. Thus, according to the trial court, no bonus can be
given to the defence on that accord. I find no reason to take a different
view deviating from the reasons and conclusion arrived at by the trial
court. Therefore, the finding arrived at by the trial court that the
accused has committed offence which charged against him deserves no
interference and accordingly, the conviction is confirmed.
10. With respect to the sentence, the learned counsel submitted
that even according to the prosecution the quantity alleged to have
possessed by accused is only 3 litres of illicit arrack and he is not a
habitual offender and he is now at the age of 56 years. Therefore, the
counsel prays that lenient view may be taken.
11. On considering the above submissions on merit, I am of
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the view that certain modification can be brought with respect to the
sentence. It is to be noted that the quantity involved in this case is
about 3 litres of illicit arrack and at the time of trial, the accused was at
the age of 51 years, now he crossed 56 years. Therefore, according to
me imprisonment of one year is sufficient to meet the ends of justice.
Therefore, the sentence of imprisonment is reduced into one year from
5 years. As the fine amount is fixed to the tune of minimum statutory
amount, no interference is called for. But the default sentence is
reduced from one year to one month. Set off is allowed under Section
428 of Cr.P.C.
In the result, the appeal is devoid of merit and the same is
dismissed, but subject to the above modification with respect to the
sentence.
V.K. MOHANAN, JUDGE
scm