IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1117 of 2010(D)
1. MADHGUSOODHANAN, C.NO.4724,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :ADV.SYLAJA S.L.[STATE BRIEF]
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice K.HEMA
Dated :22/12/2010
O R D E R
K.HEMA, J.
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Crl. Appeal No.1117 of 2010
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Dated 22nd December, 2010.
J U D G M E N T
This appeal arises from conviction and sentence
passed against appellant under Section 8(1) read with Section
8(2) of the Kerala Abkari Act (‘the Act’ for short) to undergo
simple imprisonment for one year and to pay a fine of
Rs.1,00,000/- and in default to undergo simple imprisonment
for three months.
2. According to prosecution, on 12.4.2001 at about
12.30 p.m., PW1, the Sub Inspector of Police along with the
police party was engaged in raid relating to offence under the
Abkari Act. When the party reached the place of occurrence,
accused was found sItting under a rubber tree, with a can and a
glass. On suspicion, the can was opened and examined and it
was found to contain arrack. Body search of the accused was
conducted and Rs.40/- was seized from his person.
3. The accused did not have any explanation for
possession of arrack and hence, he was arrested. The articles
Crl.Appeal No.1117/10 2
were seized under Ext.P1 mahazar. Samples were also taken.
Crime was registered at the police station and on finding that
the place of occurrence lies within the jurisdiction of another
police station, the records were sent to that police station. PW2,
who is A.S.I. Of police conducted the investigation. After
investigation, charge sheet was laid by PW5, who is the Sub
Inspector.
4. The court framed charge against appellant under
Sections 55(a), 8(1) and (2) of the Act. The prosecution
examined PW1 to PW5, marked Exts.P1 to P7 and MO1 to MO3.
The accused did not adduce any evidence, but he contended
that he was implicated in this case on detecting an abandoned
contraband article from an estate, while he was proceeding to
his house.
5. On an analysis of the evidence in detail, the trial
court found that prosecution proved that arrack was seized
from the possession of accused, as alleged by prosecution and
the court held that there is nothing on record to disbelieve the
Crl.Appeal No.1117/10 3
testimony of PW1 and PW3.
6. The accused was undefended and hence
Adv.Smt. Sylaja S.L. was appointed as State Brief. Heard both
sides. Perused the records. Learned defence counsel argued
that the only eye witness is PW4 and he turned hostile to the
prosecution. PW4 has no case that he had seen the incident,
but he only signed in a blank paper. Therefore, the evidence of
the official witnesses may not be relied upon, it is argued.
7. Learned defence counsel also submitted that
appellant is not involved in any other case. Even according to
prosecution, there is nothing to indicate that any sale took
place, it is pointed out. An abandoned article was detected and
petitioner is falsely implicated in this case, it is submitted. It is
also pointed out by learned defence counsel that PW3 an
official witness admitted that in the estate, contraband articles
used to be found in abandoned state and cases used to be
registered and the offender would be traced out only thereafter.
8. Learned Public Prosecutor argued that the
Crl.Appeal No.1117/10 4
evidence adduced in this case sufficiently establish the
allegations made against appellant. The only fact that PW3
admitted that abandoned articles used to be seized etc. are not
at all sufficient to discard the evidence that appellant was found
with the contraband article. There is only suggestion made
regarding abandoned article etc., but there is nothing on record
to infer that this is a false case.
9. On going through the evidence and records in this
case, I find that PW1, the Sub Inspector and PW3, the A.S.I.,
gave evidence relating to seizure of contraband articles from
accused fully corroborating each other. Both of them deposed
that on 12.4.2001, they found the accused sitting beneath a
rubber tree and he was having in his possession, one can
containing arrack and a glass. They also stated that accused
had no explanation for possession of the contraband article.
Their evidence is not discredited in cross-examination. There is
no explanation for accused why those witnesses would perjure
against him. For the only reason that they are official witnesses,
Crl.Appeal No.1117/10 5
it may not be proper to discard their evidence.
10. Of course, a suggestion is made that contraband
article was found in an abandoned state and it was seized from
the place of occurrence and the accused, who was proceeding
along the way to his house was implicated falsely in this case.
PW3 admitted that there used to be cases in which abandoned
contraband articles falling under the Abkari Act are seen and
cases registered etc., as pointed out by learned defence
counsel. But, it is relevant to note that according to PW3,
accused used to be traced out in such cases and proceeded
against.
11. But, in this case, it was a spot arrest. Though
suggestions are made to show that it is a false case, such
suggestions alone may not be sufficient to hold that the officials
falsely foisted a case against appellant. The appellant has not
made any complaint against any of the officials in this case
before any authority. For the only reason that independent
witness did not speak anything about the detection of the
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crime, the evidence of PW1 and PW3 cannot be discarded.
12. PW4 is an independent witness and he has
stated that he has signed in Ext.P4 mahazar. In the cross-
examination, he stated that he signed in a blank paper and that
he did not see the accused being arrested or the arrack being
recovered. But, he has no explanation why he has signed in a
blank paper. Taking all these facts into consideration, I find no
reason to interfere with the finding. The sentence is only
simple imprisonment for one year and to pay a fine of
Rs.1,00,000/- which is only reasonable. Hence, the conviction
and sentence do not call for any interference.
This appeal is dismissed.
K.HEMA, JUDGE.
tgs