IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 648 of 2008()
1. P.C.JOY, C.NO.5370,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY THE
... Respondent
For Petitioner :SIJU.K. (STATE BRIEF)
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :11/11/2008
O R D E R
R. BASANT, J.
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Crl.A. No. 648 of 2008
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Dated this the 11th day of November, 2008
JUDGMENT
This appeal is preferred by the appellant against the
verdict of guilty, conviction and sentence imposed on him by
the learned Sessions Judge in a prosecution under Sec.55(a) of
the Kerala Abkari Act. He faces a sentence of rigorous
imprisonment for a period of two years and to pay a fine of
Rs.1 lakh and in default, to undergo rigorous imprisonment for
a further period of three months.
2. The crux of the charge against the appellant is that he
was found to transport in his possession 39 packets of
Karnataka arrack through the check post at Baveli at 8.40 a.m.
on 30/3/06. He was intercepted by P.W.1 – an Excise official.
P.Ws.2 and 4 are Sales Tax officials at the check post who had
witnessed the occurrence and had signed Ext.P2 seizure
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mahazar as attestors. P.W.3 is the Investigating Officer
before whom the accused was produced after arrest along with
the contraband article and the relevant documents. Cognizance
was taken by the learned Magistrate on the basis of the final
report submitted by P.W.3 after due investigation. The case was
committed to the Court of Session and at the Court of Session
charges were framed against the appellant. He denied the
charges levelled against him and thereupon the prosecution
examined P.Ws.1 to 4 and proved Exts.P1 to P7. M.Os.1 to 3
were marked. Altogether, there were 39 arrack packets, 37 of
them are marked as M.O.2 series, two of them were opened and
sample was drawn at the scene. M.O.3 series are the said
empty packets. M.O.1 is a towel which was used by the accused
to conceal the packets of arrack by tying them to his body using
the said towel. I had already adverted to the nature of the oral
evidence of P.Ws.1 to 4. Ext.P1 is the arrest memo; Ext.P2 is
the seizure mahazar; Ext.P3 is the occurrence report; Ext.P4 is
the property list; Ext.P5 is the forwarding note and the
requisition; Ext.P6 is the Chemical Examiner’s report and
Ext.P7 is the scene mahazar prepared by P.W.3.
3. After the close of the prosecution evidence, the
appellant was examined under Sec.313 Cr.P.C. In the course of
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cross-examination and when examined under Sec.313 Cr.P.C.,
the accused denied all circumstances which appeared in
evidence and which were put to him. No defence evidence was
adduced. Exts.D1 and D2 were marked in the course of cross-
examination of P.W.4. The appellant filed a statement in which
also he denied all allegations against him.
4. The learned Sessions Judge, on an anxious consideration
of all the relevant inputs, came to the conclusion that the oral
evidence of P.Ws.1, 2 and 4 about the alleged seizure can safely
be accepted. Accordingly, the learned Sessions Judge proceeded
to pass the impugned verdict of guilty, conviction and sentence.
5. The appellant is in prison. The services of a State Brief
counsel was made available to him. The learned counsel for the
appellant has advanced his arguments. I have heard the learned
Public Prosecutor also. The learned counsel for the appellant
assails the impugned judgment on the following grounds:
(i) The court below erred in accepting and acting upon the
oral evidence of P.Ws.1 , 2 and 4.
(ii) The court below ought to have held that the alleged
seizure was not at a place within the State of Kerala; but outside
the State – on the Karnataka side of the barricade.
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(iii) There has been no proper sampling done by the Excise
officials.
(iv) The sentence imposed is excessive.
6. Coming to the first ground of challenge, we have
satisfactory oral evidence of P.W.1 – an Excise official as also
P.Ws.2 and 4 who are the officials at the sales tax check post at
Baveli check post. The evidence of P.Ws.1, 2 and 4 clearly show
the alleged seizure. I find no reason whatsoever to discard the
oral evidence of P.Ws.1, 2 and 4. In fact, cross- examination of
P.Ws.1, 2 and 4 do not at all reveal that they have any animus
against the appellant or had any reason to falsely implicate him.
Not even a suggestion is made as to why P.Ws.1, 2 and 4 must
choose to speak falsehood against the appellant. The version of
P.Ws.1, 2 and 4 is further corroborated by the contemporaneous
documents – Ext.P1 arrest memo, Ext.P2 seizure mahazar and
Ext.P3 crime and occurrence report. I am, in these
circumstances, of opinion that there is no worth or merit in the
challenge raised on the first ground.
7. A contention is raised that the seizure must have taken
place outside the barricade and hence within the territory of the
State of Karnataka and outside the territory of Kerala. No
specific suggestion is seen thrown at P.Ws.1, 2 and 4 on this
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aspect. The evidence is that the accused was walking towards
the barricade when he was intercepted outside the barricade.
The evidence clearly shows that the territory of Kerala does not
commence at the Excise check post barricade and the barricade
is within the territory of Kerala. I am, in these circumstances,
satisfied that the second ground of challenge raised is also
without any merit. The same cannot be accepted.
8. The third ground of challenge is about the sampling.
The evidence clearly shows that two packets were broken open
to ascertain the nature of contents. Sampling was done using
the contents of such two packets. The empty packets are
produced as M.O.3 series. The evidence of P.W.1 and Ext.P2
seizure mahazar clearly show that the contraband article from
the two packets were taken in a sample bottle and that was also
seized under Ext.P2. A contention is advanced that the said
bottle may have been impure and that may have affected the
result of the chemical examination. P.W.1 is the Excise official.
He has stated clearly that the contents of the packet was arrack.
P.Ws.2 and 4 have also supported that version. P.W.1 in his
evidence stated that the bottle that was used was rinsed with
the contents of the contraband article seized before the sample
was poured into the sample bottle. I do not, in these
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circumstances, find much merit in the contention that the sample
bottle was not clean or dry and such inadequacy has affected the
sampling done and the later analysis by the expert..
9. No other ground of challenge is raised. I am satisfied
that on the grounds referred above, the verdict of guilty and
conviction do not warrant interference at all.
10. That takes me to the last contention that the sentence
imposed is excessive. The total quantity of contraband liquor is
3.9 litres. The appellant is not shown to have any criminal
antecedents also. The learned counsel submits that the
appellant remains in custody from the date of the judgment.
According to the learned counsel for the appellant, the appellant
was in custody pending investigation/trial also for some period of
time. It is, in these circumstances, prayed that leniency may be
shown on the question of sentence and it may be ensured that
the appellant is not obliged to continue in custody any longer.
The sentence imposed may be modified and reduced, it is prayed.
11. The appellant is shown to be aged 64 years also.
Taking note of the totality of circumstances, including the
quantity of the contraband liquor involved as also the period of
incarceration pending investigation/trial of the appellant, I am
satisfied that a lenient view can be taken on the question of
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sentence. The sentence can be suitably modified and reduced.
I note that the sentence of fine imposed is the minimum that can
be imposed under law.
12. In the result:
(a) This appeal is allowed in part.
(b) The verdict of guilty and conviction of the appellant
under Sec.55(a) of the Abkari Act are upheld.
(c) But the sentence imposed on the appellant is modified
and reduced. The substantive sentence of rigorous
imprisonment for a period of two years is modified and reduced
from two years to a period of one year. The fine and the default
sentence imposed – fine of Rupees one lakh and rigorous
imprisonment for a period of three months, are upheld.
13. A copy of this judgment shall be communicated to the
court below and the prison authorities forthwith. If the
appellant has already served the modified sentence hereby
imposed and his further detention is not required in connection
with any other case, he shall forthwith be released from custody.
Sd/-
(R. BASANT, JUDGE)
Nan/ //true copy// P.S. to Judge
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R. BASANT, J.
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CRL.A.NO.648 OF 2008
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JUDGMENT
11th NOVEMBER, 2008
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