IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1258 of 2001()
1. KANDATHIL NALINI
... Petitioner
Vs
1. STATE
... Respondent
For Petitioner :SRI.T.K.VIPINDAS
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :05/08/2009
O R D E R
R.BASANT, J
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Crl.R.P.No.1258 of 2001
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Dated this the 5th day of August 2009
O R D E R
The petitioner, a woman, has filed this revision petition to
assail the concurrent verdict of guilty, conviction and sentence
in a prosecution under Section 55(g) of the Kerala Abkari Act.
She now faces a substantive sentence of S.I for a period of three
months and to pay a fine of Rs.25,000/- and in default to undergo
S.I for a period of three months.
2. The crux of the allegations against the petitioner is
that at 1.30 p.m on 12/4/1996, when she was intercepted by an
excise party led by PW1, she was found to keep in her possession
in MO1 plastic pot 10 litres of wash, thereby she is alleged to
have committed the offence punishable under Section 55(g) of
the Kerala Abkari Act.
3. Cognizance was taken by the learned Magistrate. The
accused denied the offence alleged against her. Thereupon, the
prosecution examined Pws 1 to 3 and proved Exts.P1 to P3.
MO1 was also marked. PW1 is the Preventive Officer who
allegedly intercepted the accused, detected the offence and
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effected seizure of MO1 from the possession of the petitioner.
Ext.P1 is the seizure mahazer prepared by him. PW2 is an
attester to Ext.P1 seizure mahazer. PW3 is the Excise Inspector
before whom the seized articles and the relevant documents
were produced by PW1. Ext.P2 is the crime and occurrence
report. Ext.P3 is the chemical examiner’s report.
4. The accused denied the offence alleged against him.
In the course of cross-examination and when examined under
Section 313 Cr.P.C, she took up a defence of total denial. No
defence evidence was adduced.
5. The courts below concurrently came to the conclusion
that the oral evidence of PW1 can safely be accepted. His
evidence, if accepted, it was found established the offence under
Section 55(g) of the Kerala Abkari Act, it was held. Accordingly,
the courts below proceeded to pass the impugned concurrent
verdict of guilty, conviction and sentence.
6. Before me, the learned counsel for the
petitioner/accused and the learned Public Prosecutor had
advanced their arguments. The learned counsel for the
petitioner assails the impugned order on the following grounds:
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i) The courts below should not have accepted and acted
upon the uncorroborated oral evidence of PW1.
ii) At any rate, the sentence imposed is excessive.
7. The prosecution relied on the evidence of PW1. The
evidence of PW1 is about the seizure of MO1 with the
contraband liquor from the possession of the petitioner. The
prosecution relied on the contemporaneous Ext.P1 seizure
mahazer to support the oral evidence of PW1. The prosecution
had examined PW2, an attester to Ext.P1 seizure mahazer. PW2
admitted his signature; but did not subscribe to the contents of
Ext.P1. PW2 evasively stated that though he had subscribed his
signature, he had not witnessed the act of seizure.
8. The learned counsel for the petitioner contends that
PW1 is an Excise official and is hence interested in the
prosecution. Reliance should not have been placed on the
uncorroborated interested oral evidence of PW1, contends the
learned counsel for the petitioner strenuously. He, in support of
his contention, further urges that no other witness has been
examined though many appear to have been available at the
scene of the crime. The learned counsel for the petitioner
contends that though the seizure was effected on 12/4/1996, the
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contraband article was produced before the learned Magistrate
only on 07/051996 as per the records of the court. This
unexplained delay in production of the material objects before
the court must arouse doubt and suspicion. Consequently, the
petitioner is entitled to the benefit of doubt, contends the
learned counsel for the petitioner.
9. The learned Public Prosecutor, on the other hand,
contends that the courts below have committed no indiscretion
warranting revisional interference in placing reliance on the oral
evidence of PW1. PW1 is, of course, an excise official. In that
view of the matter, PW1 is interested in the prosecution.
Successful conduct of the prosecution is the sublime duty of
public officials. This interest which every conscientious public
official is bound to and expected to have in the successful
detection of offence and prosecution of offenders cannot, by any
stretch of imagination, reduce him to the category of interested
witnesses, for whose oral evidence, corroboration is insisted by
courts not as a rule of law; but as a rule of prudence. I have
gone through the oral evidence of PW1 in detail. I have gone
through the 313 statement of the accused. To me, it appears to
be of crucial relevance that there is not a semblance of a
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challenge against the evidence of PW1 on the ground that he is
in any way interested against the accused. In these
circumstances, the mere fact that PW1 is an excise official and in
such capacity interested in the prosecution cannot justify the
omnibus rejection of the oral evidence of PW1.
10. I find merit in the contention of the learned Public
Prosecutor that the oral evidence of PW1 is eminently supported
by the contents of the contemporaneous seizure mahazer Ext.P1.
It is of course true that Ext.P1 had reached the court only on
15/4/1996. But that delay of 3 days cannot, at all, justify any
doubt or suspicion against the oral evidence of PW1 especially
when there is not a semblance of motive suggested against PW1
to speak falsely against the petitioner. The learned counsel for
the petitioner relying on documents of the court contends that
the material objects had reached the court only on 07/05/1996,
25 days after the detection of the crime on 12/4/1996. Crucially
and significantly I note that PW1 or PW3 was not subjected to
any cross-examination on this aspect. In these circumstances,
the mere inconsequential delay from 12/4/1996 to 07/05/1996 in
producing the material objects before court, does not impress me
on a valid reason for discarding the evidence of PW1, more so,
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when the court gets assurance that Ext.P2 crime and occurrence
report had reached the court on 15/4/1996. The contents of
Ext.P2 dated 15/4/1996 do also support the oral evidence of
PW1.
11. PW2 has, of course, turned hostile; but he had
unambiguously admitted his signature in Ext.P1. As already
noted, the contents of the contemporaneous seizure mahazer
eminently support the oral evidence of PW1. Hostility of PW2 is,
according to me, of no crucial significance. Courts in India are
unfortunately exposed to the hostility of independent eye
witnesses. With impunity, witnesses swear and speak falsehood.
That must impress upon the courts the need to subject evidence
to close scrutiny but such hostility cannot persuade the courts to
commit the indiscretion of rejecting the evidence that is already
available. PW2 has stated without any conjunction that he had
not witnessed the seizure and had signed the mahazer without
even adverting to the contents thereof. In these circumstances,
the hostility of PW2 cannot also deliver any advantage to the
accused.
12. The evidence of PW1 and Ext.P1 when accepted
clearly shows that the petitioner was in possession of MO1
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containing contraband liquor. PW1 stated that it was wash
intended for the preparation of illicit arrack. Under Section 55
(g) of the Kerala Abkari Act, possession of any material
whatsoever for the purpose of manufacturing liquor is
objectionable. The chemical examiner’s report confirms that the
article contained a low percentage of alcohol confirming the oral
evidence of PW1 that it was a material used for the
manufacturing of liquor.
13. Thus, I find absolutely no reason at this third tier of
criminal litigation at the revisional stage to interfere with the
concurrent verdict of guilty and conviction of the petitioner
under Section 55(g) of the Kerala Abkari Act. The decision of
the courts below to place reliance on the oral evidence of PW1 as
also the finding that the offence under Section 55(g) of the
Kerala Abkari Act has been made out do appear to me to be
absolutely correct, fair, just and reasonable. The challenge on
the first ground does, in these circumstances, fail.
14. The learned counsel for the petitioner finally contends
that the sentence imposed is excessive. It may be taken note of
that the revision petitioner was a woman aged 35 years in 1997.
She is not shown to have any culpable past or questionable
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antecedents, submits the learned counsel for the petitioner. The
learned counsel for the petitioner further submits that the
petitioner has been enduring the trauma of this prosecution for
the past about 13 years. At the relevant time punishment for
Section 55(g) of the Kerala Abkari Act was only imprisonment for
a term which may extent to 2 years and fine which shall not be
less than Rs.25,000/-, points out the learned counsel for the
petitioner. At any rate, the substantive sentence of
imprisonment may be modified and reduced. The petitioner may
not be dragged to prison now for the indiscretion committed by
her more than 13 years back, contends the learned counsel for
the petitioner.
15. I take note of the relevant provisions regarding
punishment for the offence under Section 55(g) of the Kerala
Abkari Act. Imprisonment for a period of 2 years and fine which
shall not be less than Rs.25,000/- is the punishment. I am
satisfied, in these circumstances, that the sentence of fine can be
enhanced to accommodate the prayer of the learned counsel for
the petitioner for reduction of the substantive sentence of
imprisonment. The prayer for reduction of the substantive
sentence of imprisonment is found to be reasonable and just.
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The same is accepted.
16. The challenge raised in this revision petition succeeds
only to the above extent.
17. In the result,
a) This Crl.R.P is allowed in part.
b) The verdict of guilty and conviction of the petitioner
under Section 55(g) of the Kerala Abkari Act are upheld.
c) But the sentence imposed on the petitioner is
modified. In supersession of the sentence imposed on the
petitioner by the courts below, she is sentenced to undergo
imprisonment till rising of court. She is further directed to pay a
fine of Rs.30,000/- (Rupees thirty thousand only) and in default
to undergo S.I for a period of three months.
18. The petitioner shall have time till 07/09/2009 to
undergo the modified sentence hereby imposed. She shall
appear and her sureties shall produce her before the learned
Magistrate on or before that date.
(R.BASANT, JUDGE)
jsr
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R.BASANT, J
Crl.R.P.No.1258 of 2001
ORDER
05/08/2009
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