IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 124 of 2009()
1. CHELLAPPAN
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.V.LEKSHMANAN
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :14/01/2009
O R D E R
V.K.MOHANAN, J.
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CRL.A. No.124/2009
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Dated, 14th January, 2009
JUDGMENT
This appeal is preferred by the sole accused in S.C.No.604 on the
file of the Addl.District and Sessions Judge (Adhoc) Court No.1, Kollam.
By the judgment dated 9.4.2008, in the above case, he is convicted
under section 8(1) of the Abkari Act. Aggrieved by the above conviction
and sentence, this appeal is preferred.
2. The prosecution case is that on 5.2.2000 at 12.30 noon, the
accused was found in possession of two litres of arrack in a plastic Can
having the capacity of 2.5 litres, at the pathway near the property of
Thevalassery Vikraman Pillai, Adinad Kulashekarapuram Village,
Karunagappally Taluk. Upon the above allegation, crime No.12/2000 was
registered in the Excise Range, Karunagappally for the offence under
section 8(1) and (2) of the Abkari Act. On completion of the investigation,
final report was laid before the Judicial First Class Magistrate,
Karunagappally whereupon C.P.No.190/2001 was instituted and by order
dated 9.12.2002 in the above proceedings, the learned Magistrate
committed the case to the court of Sessions, Kollam. The learned
Sessions Judge, Kollam made over the case to the court of Principal Asst.
Sessions Judge, and subsequently transferred the case to the trial court
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for disposal. When the accused appeared, after hearing the
prosecution as well as the defence, a formal charge was framed which
was read over and explained to the accused to which he pleaded not
guilty and consequently, the prosecution adduced evidence consists of
the oral testimony of PWs 1 to 7 and the documentary evidence such
as Exts.P1 to P9. Material object was identified and marked as
M.O.1. When, the accused was questioned under section 313 Cr.P.C.,
he denied the incriminating circumstances, which emerged during the
prosecution evidence. No evidence was adduced by the accused.
Finally, the trial court found that the accused was guilty of the charge
levelled against him and accordingly, he is convicted under section 8
(2) of the Abkari Act. Thereafter on hearing the accused on sentence,
he was sentenced to undergo rigorous imprisonment for a term of two
years and to pay a fine of Rs.1,00,000/-. The default sentence was
fixed as simple imprisonment for 6 months. It is the above conviction
and sentence challenged by the accused /appellant.
3. I have heard Sri V.Lakshmanan, the learned counsel
appearing for the appellant and also the learned Public Prosecutor.
4. The case of the prosecution reveals mainly through the
deposition of PWs 1 and 6 who are the Preventive Officers attached to
the Karunagappally Excise Range. PW1 is the officer who detected the
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crime and PW 6 is the officer who accompanied PW1 at the time of the
detection. They have stated that on 5.2.2000, they were on patrol duty
and while reached at the western side of the culvert on the eastern
side of Thevalassery junction, and on the eastern side of the house of
Thevalassery Vikraman Nair, they could see the accused holding a
plastic black Cannas of having the capacity of 2 = litres, proceeding
towards the detecting party and on seeing the party, he tried to leave
the place. According to the above witnesses, they intercepted him and
on examination of the Cannas which was possessed by the accused, in
the presence of occurrence witness, by tasting and smelling, they
identified that the Can contained illicit arrack. Accordingly, the
accused was arrested at the spot. The information about his arrest was
passed on to Vasantha, wife of accused by giving Ext.P1 arrest notice
which contained the signature of PW1 and said Vasantha. PW1 had
also prepared Ext.P1 arrest memo regarding arrest, seizure of the
contraband article etc. and mentioned in detail in Ext.P3 mahazar.
The seized materials were affixed with label which contained the
signature of both PW1 and accused. After completing the proceedings
at the spot, the contraband article and other materials seized and also
the accused were taken to the Excise Inspector namely, PW3. The
evidence of PW1 fully corroborated by the testimony of PW6. PW6 had
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also identified M.Os 1 and the accused. When PW3, the Excise
Inspector was examined, he had deposed that he had received the
accused, property and the records from PW1 and accordingly, registered
C.R.No.12/2000 on the basis of Ext.P3 seizure mahazar and PW3
prepared Ext.P4 occurrence report. Thus, according to PW3, Thondi
Articles and the connected documents were produced before the court
on the same date of the detection. Ext.P5 is the remand application
and Ext.P6 is the property list. The documents would further show that
the properties mentioned in the list were received in the court on
5.2.2000 itself. As per Ext.P6, request was made to forward the
sample for chemical analysis. Ext.P7 is the Chemical Analysis Report.
Ext.P7 disclosed that the sample received in the Lab contained 30.37
percentage by volume of ethyl alcohol. PW5 property clerk was
examined to show that the Thondi articles were received in the court on
5.2.2000. PW4 is the officer who conducted the investigation in the
above crime. He recorded the statement of witnesses and submitted
charge against the accused, on getting Ext.P7 chemical examination
report. Thus on the basis of the evidence, the trial court found that the
accused is guilty of the charge levelled against him.
5. The learned counsel for the appellant submitted that the order
of conviction and sentence passed by the court below are not
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sustainable either on law or on facts. According to the learned counsel,
there is no evidence to connect the accused/appellant with the alleged
crime since the prosecution has failed to adduce independent
evidence. Thus according to the learned counsel, except the interested
version of the official witness, absolutely, there is no other evidence to
corroborate the version given by the official witness. The learned
counsel also submitted that there was no proper sampling. It is also
argued that regarding the forwarding of the sample for chemical
analysis, there is no acceptable evidence since PW5 who was
examined by prosecution was not able to depose before the court
correctly as she had no direct acquaintance with the proceedings.
Thus, in the above background, it is submitted that the order of
conviction and sentence passed by the court may be set aside.
6. Strongly supporting the finding of the trial court, the learned
Public Prosecutor submitted that the evidence of the official witnesses
are free from doubt and infirmities and therefore, in the absence of
independent witness, the evidence of the official witnesses can be
acted upon. It is pointed out by the learned Public Prosecutor that the
contraband articles were seized from the possession of the accused
and the sample was drawn at the spot and the accused and the
materials were produced in the court on the same date of seizure and it
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is from the court, the sample was sent for chemical analysis and as
per Ext.P7 report, it is certified that sample contained ethyl alcohol.
Therefore, the Public Prosecutor submitted that the trial court had
rightly come into the conclusion regarding the guilt of the accused
based upon materials and evidence on record and therefore no
interference is warranted.
7. I have heard and carefully considered the arguments
advanced by the learned counsel for the appellant as well as the
learned Public Prosecutor. Going by the evidence of PWs 1 and 6, it is
clear that their evidence is free from contradictions and infirmities and
they have deposed before the court in terms of the prosecution case.
Though they were examined extensively, nothing was brought to
discredit their version. Regarding the drawing of sample, Ext.P3
mahazar deals with the procedure adopted by PW1. I find no defect in
the drawing of sample and also sending the same to the Chemical
Analysis Laboratory. Ext.P7 report would show that the seal on the
bottle was intact and found tallied with the sample seal provided.
Nothing is brought on record to take a different view. If that be so, the
minor discrepancy of non explanation regarding certain aspects in the
deposition of PW5 is not sufficient to disbelieve the prosecution case.
8. Thus on an evaluation of the evidence adduced by the
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prosecution and the materials on record, I am of the view that the
finding of the trial court is fully supported by the evidence and, hence,
the conviction arrived on by the court below is absolutely correct.
Therefore, the conviction is confirmed.
9. Regarding the sentence, the learned counsel submitted that a
lenient view may be taken. It is also pointed out by the learned counsel
that at the time of the pronouncement of the judgment, the accused
was at the age of 52 years. According to the learned counsel, when
compared with the quantity alleged to have possessed by the accused,
the sentence awarded is disproportionate. I have carefully considered
the above submission. Considering the particular facts and
circumstances involved in the case, I am of the view that certain
modifications can be made with respect to the sentence. Accordingly,
the substantive sentence of imprisonment is reduced from two years to
nine months. As the fine amount awarded is only the statutory
minimum, no interference is called for. But the default sentence is
refixed as one month instead of six months. Set off is allowed under
section 428 of Cr.P.C.
10. From the records it is revealed that the appellant was
arrested on 5.2.2000 and he was in custody as an under-trial prisoner
till his release on bail on 10.3.2000. Thus he had undergone
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imprisonment for 34 days. Pursuant to the pronouncement of the
impugned judgment, he is undergoing imprisonment from 9.4.2008
onwards and as on today, he had completed 9 months and 10 days .
Thus he had already suffered imprisonment for a total period of 314
days. As the substantive sentence of imprisonment is refixed as 9
months and the default sentence is refixed as one month and he had
already undergone a period of 314 days, the appellant/accused is
entitled to get release from jail, especially, the benefit of set off is
allowed under section 428 of Cr.P.C. Therefore, there will be a direction
to release the appellant/accused forthwith, if he is not required in any
other case.
Thus, the appeal is disposed of confirming the conviction but
subject to the above modification with respect to the sentence.
V.K.MOHANAN, JUDGE
kvm/-
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V.K.MOHANAN, J.
No….
Judgment/Order
Dated: