IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 2721 of 2008()
1. GOPALAN, C.NO.5820, CENTRAL PRISON,
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :.....
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :11/02/2009
O R D E R
V.K. MOHANAN, J.
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Crl. Appeal No. 2721 OF 2008
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Dated this the 11th day of February, 2009
JUDGMENT
The sole accused in S.C. 191/2005 on the file of the
court of the Additional District and Sessions Court, Vadakara is the
appellant herein, who challenges his conviction and sentence
under Section 8 (1) of the Kerala Abkari Act.
2. The appellant in pursuance to the impugned
judgment is undergoing imprisonment and hence he preferred this
appeal from the jail.
3. Prosecution case is that on 7.8.2002 at 12.00 noon
at Velliyode amsom desom the accused was found in possession
of 5 litres of illicit arrack in violation of the provisions of the Kerala
Abkari Act and thereby committed an offence punishable under
Section 8 (2) of the Abkari Act. On the basis of the said allegation
crime 28/2002 registered in the Nadapuram Excise Range. After
completing the investigation in the above crime, charge was laid
before the Judicial First Class Magistrate Court, Nadapuram
wherein C.P. 147/2004 was instituted. The learned Magistrate by
his order dated 29.1.2005 case was committed to the Sessions
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Court, Kozhikkode from where the case is made over to the
present court for trial. After hearing the accused and the
prosecution a formal charge was framed under Section 8 (1) of the
Abkari Act which read over and explained to the accused and he
pleaded not guilty. Thus the trial was continued and during which
Pws1 to 6 were examined and Ext.P1 to P7 were marked from the
side of the prosecution. M.O.1 is identified and marked as material
object. The incriminating circumstances, which brought on record
during the prosecution evidence, when put to the accused under
Section 313 of Cr.P.C., he denied the same. No evidence was
adduced from the side of the defence. Finally, the court below
found that the accused is guilty of the charge levelled against him.
After hearing the accused on the question of sentence, the court
below sentenced him to undergo Rigorous Imprisonment for a
period of 2 years and to pay a fine of Rs.1,00,000/-. The default
sentence is fixed as six months Rigorous Imprisonment. Set off is
allowed. It is the above finding, conviction and sentence are
challenged in this appeal.
4. As the appellant is undergoing imprisonment, and
the appeal is preferred from the jail, Advocate Neema T.V.
appointed as state brief. Thus, I have heard the learned counsel
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appearing as the state brief and also the learned Public Prosecutor.
5. In order to substantiate the above allegation, the
prosecution mainly relies upon the evidence of PW1 and 2. PW1 is
the preventive officer attached to the Excise Range of Nadapuram.
According to him, when himself and party was conducting patrol
duty in Nidumparamb of Valliyode amsom desom on 7.8.2002 he
found that the accused at about 12’O clock coming with a 10 litre
capacity can and on inspection it was found to contain 5 litres of
illicit arrack. The accused was arrested on the spot and the sample
taken and bottle was sealed and affixed with label and material
objects were taken into custody as per Ext.P1 seizure mahazar.
Ext.P2 is the crime and occurrence report, Ext.P3 is the property
list and Ext.P4 is the arrest memo. Ext.P1 to Ext,P4 were marked
through PW1. He had also identified M.O.1 can containing the
balance quantity of illicit arrack. Though Pw1 was cross examined
extensively nothing was brought out to discredit his version. He
had stated that property was produced before the court on
9.8.2002 as the time they reached in the Excise office after the
patrolling was at about 5.30 P.M. The suggestion to PW1 is that
accused was arrested when he was crossing thodu for taking
bath. PW2 is the another preventive officer who accompanied
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PW1 during the patrol duty at the time of seizure. PW2 also
deposed in tune of the deposition made by PW1. PW2 also
though subjected to lengthy cross examination nothing was brought
on record in favour of the defence. PW3 is an attester to Ext.P1
seizure mahazar. Though PW3 admitted his signature in Ext.P1
seizure mahazar, he turned hostile to the prosecution. PW4 is the
Village Officer of Vanimel village through him Ext.P6 location
certificate was marked. PW5 is the Excise Inspector who
conducted the further investigation. PW6 is the property clerk
attached to the Judicial First Class Magistrate Court, Nadapuram
and he deposed that he had received property in the above case
on 9.8.2002 as item No. 155/2002. Except the sample bottle the
balance quantity in property was returned to the excise party for
safe custody. On the basis of the above evidence and on materials
the court below found that the prosecution has succeeded in
establishing the case against the accused and accordingly he is
found guilty under Section 8 (1) of the Abkari Act.
6. Challenging the above finding the learned counsel
for the appellant submitted that except the interested version of
official witnesses there are no independent witnesses to
corroborate the evidence of official witnesses. It is to be noted that
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the depositions of PW1 and 2, even though they are official
witnesses, their testimonies are free from any sought of infirmities
or discrepancies. Though PW1 and 2 were subjected to lengthy
cross examination nothing was brought out to discredit their
version. There is no rule that the evidence of official witnesses
cannot be acted upon or admitted in the absence of independent
evidence. The trial court itself considered the above question and
on the basis of the law settled as per the decision reported in
Suresh Vs State (1995(1) KLT 636), State of Kerala Vs.
Choyiunni (1980 KLT 107), Dominique Vs. State of Kerala
(1989 (1) KLT 601) and Sadanandan Vs. State of Kerala 1992
(1) KLT S.N. 22, the trial court found that the evidence of official
witnesses such as PW1, the detecting officer and PW2
accompanying officer is free from blemishes and credible and
therefore the same can be accepted in proof of arrest, search and
seizure even though the independent witnesses turned hostile.
7. Another point raised by the appellant is that he was
implicated in the above case because of animosity of the excise
officials especially Pws1 and 2. According to him, when he
reached in the excise range office one month prior to the date of
occurrence in person, he was asked by the excise officials about
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the persons who are involved in the illegal sales of illicit arrack and
distillation etc. As he was not aware about it he did not comment it.
It is for the said reason, according to the appellant, the excise
officials impleaded him in the present case. Except the mere
pleading, there is no material to advance and substantiate such
pleadings. When the accused was questioned under Section 313
of Cr.P.C. no such plea was put forwarded by him. Apart from all
those aspects now prosecution adduced the evidence regarding
the actual seizure of illicit arrack from his possession and such
seizure, arrest etc are supported by contemporaneous documents
like Exts.P1 to P4 besides the evidence of PW1 ans 2. Therefore,
the case of the appellant that he is implicated in the case because
of animosity of the official witnesses cannot be believed even for a
moment. In the light of the above facts and circumstances and the
evidence on record, I find not illegality with the impugned judgment
and therefore, the order of conviction arrived on by the court below
is confirmed.
8. Regarding the sentence, it is submitted that a
lenient view may be taken as the appellant is now at the age of 50
years and he has two grown up daughters who are now at the age
of marriage. It is borne out from the records that the appellant is
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the first offender and the prosecution has no case that he is
involved in any another case like the present one. Considering the
fact that accused/appellant is now at the age of 50 years and in the
particular family background of the appellant, I am of the view that
certain modification can be made with respect to the sentence.
Accordingly, the substantial sentence is reduced and refixed as 15
months Rigorous Imprisonment. As the fine amount is fixed as the
minimum statutory amount no interference is called for. But the
default sentence can be reduced and refixed as one month instead
of six months. Thus, the appellant is sentenced to undergo
Rigorous Imprisonment for a period of 15 months and to pay fine of
Rs.1,00,000/- and in case of default in payment of fine he is
directed to undergo Rigorous Imprisonment for a further period of
one month. Set off is allowed under Section 428 of Cr.P.C.
9. From the records, it appears that accused was
arrested on 7.8.2002 and he was released on bail on 28.8.2002
and thereby he was in custody for 21 days as an under trial
prisoner. The date of impugned judgment is 31.10.2007 and he is
undergoing imprisonment pursuant to the said judgment from the
date of judgment itself. Thus, now he had already undergone 16
months imprisonment including the period he had undergone as
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under trial prisoner. Since set off is allowed and the appellant had
already undergone the period as refixed and revised by this court,
he is entitled to get released from the jail. Therefore, there will be a
direction to release him forthwith, if he is not require in any other
case.
In the result, appeal is disposed of confirming the
conviction but subject to above modification in respect of the
sentence.
V.K. MOHANAN, JUDGE
kmd