IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 874 of 2007()
1. RAJENDRAN @ RAJU
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :LIJU M.P[STATE BRIEF]
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.THANKAPPAN
Dated :24/07/2007
O R D E R
K. THANKAPPAN, J.
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CRL.A.NO.874 OF 2007
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Dated this the 24th day of July, 2007.
JUDGMENT
The accused was charge sheeted by the police for an offence
punishable under Section 58 of the Abkari Act for possession of 4
liters of arrack on 28.3.2000 at about 8.50 a.m. To prove the case
against the appellant, prosecution examined Pws 1 to 3 and relied on
Exts.P1 to P9. MO1 is also produced. The appellant denied the
prosecution case and had stated that he was arrested not as
spoken to by the prosecution witnesses, but from a shop in the
previous night of 28.3.2000. However, the trial court found the
appellant guilty under Section 58 of the Abkari Act and he was
convicted thereunder and sentenced to undergo R.I for two years and
to pay a fine of Rs. One lakh with default sentence of payment of
fine, to undergo R.I for a further period of three months. The
judgment of the trial court is challenged in this appeal.
2. This appeal is filed through the jail authorities. Since the
appellant is not having his own counsel to argue the matter, a
member from the State brief panel has been appointed to argue the
CRL.A.NO.874/2007 2
matter. This Court heard the learned counsel appearing for the
appellant and the learned Public Prosecutor. The learned counsel
appearing for the appellant mainly had taken three contentions
before this Court. Firstly it is submitted that the trial court had
committed a serious error in placing reliance on the evidence of Pws
1 and 2, who were the police officials, to prove the case against the
appellant as the prosecution has not examined any independent
witnesses to prove the seizure of MO1 or even the action taken by
PW2. Secondly, it is contended that while detecting the offence,
PW2 – the Sub Inspector of Police had committed a serious error in
not getting the presence of independent witnesses to watch the
action taken by him and hence, PW2- Sub Inspector had violated the
provisions of the Abkari Act as well as the provisions of the Kerala
Excise Manuel. Thirdly, it is contended that the evidence of PWs 1
and 2 does not prove that the contraband was kept in safe custody
till the sample was taken for analysis, hence there is substitution of
the same.
3. The prosecution case as spoken to by Pws 1 and 2 is that
while PW2 – the Sub Inspector of Police, Vellarada Police Station was
on patrol duty along with the other police officials reached at the
CRL.A.NO.874/2007 3
place called Vattavila and got information that a person was
engaged in selling arrack at Vattavila, Pulloorkulangara. On getting
the above information, the police party reached the place called
Vattavila at Chenkal Village and found that the appellant was in
possession of a jerry can having the capacity of 5 liters and on seeing
the police party, the appellant tried to escape from the spot. However,
he was stopped and questioned. On questioning him it was
revealed that the can contained arrack and it was kept for sale. On
preparing Ext.P1 mahazar, MO1 can was seized in the presence of
independent witnesses and on issuing an arrest memo, the appellant
was arrested. Both the appellant and the contraband were produced
before the court on the same day. After filing requisite requisition
before the court for analysing the sample taken from MO1 can and
as per Ext.P5 it was reported that the sample contained 26.62% ethyl
alcohol by volume and hence, the final charge has been filed before
the court. The trial court found that the evidence of Pw1- the Head
Constable, who accompanied PW2- the Sub Inspector, was
acceptable and non-examination of the independent witnesses,
whose name appeared in Ext.P2 mahazar, was not a reason to
believe Pws 1 and 2. The criticism levelled against the evidence of
these witnesses was that even though Ext.P1 mahazar contained
CRL.A.NO.874/2007 4
the names of two independent witnesses, none of that independent
witnesses was examined by the prosecution to prove the action taken
by PW2 at the spot and at the time of arrest of the appellant. In this
context the trial court had found that even though two names were
found in Ext.P1 mahazar as independent witnesses, the Prosecution
had given up these witnesses. The trial court found that if the
evidence of these witnesses is acceptable and that does not
contain any infirmity, there is no bar for proving the prosecution
case against the appellant. The contention raised by the counsel is
that as Ext.P1 contained the names of two independent witnesses
and the prosecution was also aware that if these witnesses were
examined before the court, they would not support the prosecution
case at all. But that by itself may not be a reason for not examining
any independent witnesses. However, the case suggested to Pws 1
and 2 and the case set up by the appellant when he was
questioned under Section 313 would not suggest that the appellant
was implicated falsely by the police and the police officials have
foisted the case against the appellant with an ulterior motive or with
any prior enmity. In the above circumstances, the trial court is fully
justified in placing reliance on the evidence of Pws 1 and 2. Apart
from the evidence of PW2, PW3- the Thondi Clerk attached to the
CRL.A.NO.874/2007 5
committal court was examined before the court. PW3 had given
evidence before the court that the thondi article namely MO1 was
reached at the court on 29.3.2000 itself, i.e, on the next day of
detection of the crime. However, in Ext.P4 thondi list it was seen
that magistrate had recorded that MO1 may be verified and
received on 28.3.2000 as per the initial of the magistrate. Apart from
the above, it was the case of PW2 – the Sub Inspector that MO1
and the appellant were produced before the court on the same day.
In the above circumstances, the evidence given by PW3 that MO1
was seen or received in the court on 29.3.2000 may not have much
consequences.. However this witness has stated before the court
that as per the direction given by the magistrate, the sample has been
collected and sent for chemical analysis by himself. Though this
witness was cross examined at length, his evidence has not been
shattered to prove that the sample has been taken from MO1 and
got analysed as per the direction given by the court. In the above
circumstances, Ext. P5 report clearly proves that the sample taken
from MO1 can was produced before the court on the same day.
Hence, non-examination of the independent witnesses, whose names
appeared in Ext.P1- mahazar may not fatal to the prosecution case.-
Even though it was suggested to Pws 1 and 2 that the seal and the
CRL.A.NO.874/2007 6
label fixed by PW2 on MO1 have not seen when it was examined in
the court during trial, that by itself was not a reason to reject the
evidence of Pw 2, who had given evidence before the court that MO1
was seized from the appellant and it was duly labeled and sealed.
Unless and until it is proved or suggested that the contraband
article has been substituted by the prosecution, it is not possible to
hold that the evidence of Pws 1 and 2 cannot be the basis for
finding that the appellant was found in possession of MO1 and MO1
was seized as spoken to by Pws 1 and 2. In the above
circumstances, the finding of the trial court is on evidence.
4. However, the trial court on the basis of the evidence adduced
by the prosecution witnesses found that the appellant had committed
an offence punishable under Section 58 of the Abkari Act. The
prosecution case is that the appellant was found in possession of 4
liters of arrack on 28.3.2000 at about 8.50 a.m without having any
permit or license under the provisions of the Abakri Act. If a
person is found in possession of arrack without having any license or
permit, which would constitute an offence under Section 8(1) read
with Section 8(2) of the Abkari Act.
CRL.A.NO.874/2007 7
5. In the above circumstances, the finding of the trial court that
the appellant committed an offence punishable under Section 58 is
set aside instead he is found guilty for an offence punishable under
Section 8(1) read with Section 8(2) of the Abkari Act. The trial court
had imposed R.I for two years and fine of Rs. One lakh against
the appellant. After considering the fact that the case was of the
year 2000 and the prosecution has not adduced any evidence to
show that the appellant was engaged in selling arrack, the sentence
imposed against the appellant has to be reduced.
6. Accordingly, appellant is convicted under Section 8(1) read
with 8(2) of the Abkari Act. He is sentenced to undergo R.I for one
year and to pay a fine of Rs.One lakh with default sentence of
payment of fine, to undergo S.I for a period of three months. The
appellant is entitled for the benefit of set off under Section 428 of
Cr.P.C.
With the above modifications in the conviction and sentence, in
all other respects the appeal stands dismissed.
K. THANKAPPAN, JUDGE.
cl
CRL.A.NO.874/2007 8
K THANKAPPAN, J.
CRL.A.NO.874 OF 2007
JUDGMENT
24th July, 2007.