High Court Kerala High Court

Roy vs State Of Kerala on 9 September, 2009

Kerala High Court
Roy vs State Of Kerala on 9 September, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 1184 of 2002()


1. ROY, S/O. VELATHIPARAMBIL OUSEPH,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED BY
                       ...       Respondent

                For Petitioner  :SRI.P.VIJAYA BHANU

                For Respondent  : No Appearance

The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN

 Dated :09/09/2009

 O R D E R
            THOTTATHIL B.RADHAKRISHNAN, J.
                   -------------------------------------------
                      Crl.A.No.1184 OF 2002
                   -------------------------------------------
            Dated this the 9th day of September, 2009


                               JUDGMENT

1.Convicted for offences punishable under Sections 55(i) and 58

of the Abkari Act, the appellant stands sentenced to undergo

rigorous imprisonment for two years and to pay a fine of

Rupees One Lakh, in default, to undergo rigorous

imprisonment for six months, under each of the aforesaid two

counts. Concurrence in sufferance is also ordered.

2.The allegation is that, apprehended by PW1 Excise Preventive

Officer, from behind a tea shop of Kolamkanny Ouseph at

about 5.30 p.m. on 20.10.1998, the accused was found to be in

possession of a plastic bag with 4 bottles of 750 ml each,

containing illicit arrack, for sale. Hence, he was charged of

having committed offences under Sections 8(1) and (2) of the

Abkari Act. On committal, the Court of Session framed charge

of commission of offences under Sections 55(i) and 58 of the

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Abkari Act. The accused pleaded not guilty. His defence was

one of total denial.

3.PW1, the detecting officer, was examined. PW4, the Excise

Guard and PW5 the Excise Inspector, to the extent they do,

corroborates the version of PW1. Chemical analysis report

and other exhibits corroborates the version of PW1 regarding

the search, seizure, sampling and the result of the chemical

analysis. PWs.2 and 3, independent witnesses, cited to prove

the seizure mahazar, turned hostile. Assimilating the

evidence, the Court of Session concluded that the prosecution

succeeded in proving that the accused committed the offences

punishable under Sections 55(i) and 58 of the Abkari Act.

Accordingly, he was held guilty, convicted and sentenced.

4.Learned counsel for the appellant argued that the conviction

under Section 55(i) could not have been made at all in as much

as, according to him, there is no legal evidence on record, on

the basis of which, it could be inferred that the seized material

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was sold or stored for sale. The plea is that there is neither

any corroborating oral evidence or seizure of any other

material which may justify the conclusion as to the possibility

of the storage of the material for sale. So much so, it is

contended that though storing for sale, by itself, may be

sufficient to attract Section 55(i), there is no shred of legal

evidence on which the conviction could sustain on that count.

It was also argued that the scene mahazar contains an

interpolation apparently attempting to show that it was got

signed by the accused also.

5. In so far as the conviction under Section 58 is concerned, it

was argued on behalf of the accused that there was no

corroborating material in support of the version of PW1,

particularly when PWs.2 and 3 had turned hostile. It is further

argued that even if the conviction under Section 58 were to

stand, the sentence imposed is highly excessive and deserves

to be trimmed down particularly when the accused is, as stated

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by him before the learned Sessions Judge, one who has a

family consisting of a wife and others to maintain.

6.Learned Public Prosecutor argued that to sustain the

conviction under Section 55(i), it is unnecessary to establish

that the accused was involved in selling liquor and that, in so

far as the allegation that he had stored the liquor for sale is

concerned, the evidence of PW1 that while patrolling, he got

information about the accused being involved in such

transactions in the scene of occurrence in question, is

sufficient material to conclude that the offence under Section

55(i) has also been committed. It is further argued that error,

if any, on the face of the scene mahazar was explained by PW1

and the said officer has also spoken about the seizure. He

further argued that the quantity recovered, viz., 4 bottles of

750 ml each and the recovery of a jerry can from a nearby

bush as shown by the accused, are sufficient corroborative

materials to sustain the conviction under Section 55(i). It was

also argued that there was no ground to interfere with the

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conviction under Section 58 and the sentence imposed on

both counts cannot be treated as excessive having regard to

the fact that the offence is in relation to a banned substance

and also because it results in an activity which is essentially

anti-social and having impact on health of the consumers.

7.PW1, the detecting officer, spoke in terms of the allegations

levelled against the accused. The information regarding the

activity of sale of illicit liquor from the scene of occurrence as

available to PW1 during patrol duty was also spoken to by

him. Though not specifically cross examined on the issue

regarding the source of that information, the evidence of PW1

was that he remained in the jeep and two other officers had

earlier confirmed the activity attributed to the accused. The

scene of occurrence is stated to be behind a tea shop. The

owner of the tea shop is not a witness. The witnesses cited to

prove the drawing up of the mahazar turned hostile, though

they admitted their signatures in the mahazar. This means

that their evidence could be used only to the extent of proving

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the mahazar. The time of search, seizure and arrest is 5.30

p.m. It has to be reasonably assumed that there could have

been other independent persons available in the locality. The

mahazar also does not disclose the presence of any other

person. On the whole, the evidence on record is insufficient to

hold that the charge under Section 55(i) that illicit liquor was

possessed for sale is established beyond doubt.

8.On to the conviction under Section 58, it needs to be noted

that the evidence of PWs.1, 4 and 5 corroborated by the

documentary evidence on record categorically proved the

search, seizure and arrest and the nature of the material

seized. The chemical analysis report is beyond challenge. No

personal animosity or any other vitiating element is suggested

as against PW.1, 4 and 5. The accused person does not put

any particular defence in his statement under Section 313

Cr.PC, except a total denial. With the materials on record, the

court below was wholly justified in concluding that the accused

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had committed the offences punishable under Section 58 of

the Abkari Act.

9.Having seen that the accused is not proved to be guilty under

Section 55(i), the conviction to that extent needs to be set

aside. The conviction under Section 58 stands.

10.On the question of sentence, the accused was 31 years old at

the time of occurrence. His occupation, as recorded by the

court below, shows that he was a coolie. Then he had to

maintain his wife and child. With the passage of time, the

learned counsel for the petitioner states that he would have

reformed himself, if at all there could be any attribute of any

tendency to commit such wrong. But, the mere passage of

time, with case pending before the courts, is no ground by

itself to reduce sentence. That, in fact, should not have a

marked impact on the sentencing policy of courts. Taking into

consideration the age of the accused at the time of occurrence,

the social strata from which he comes and the quantity of illicit

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arrack recovered from him and also the finding that it has not

been proved that he possessed the material for sale, I deem it

justifiable to sustain the fine of Rupees One lakh imposed

under Section 58, but modify the sentence of imprisonment

imposed under that Section to be to undergo rigorous

imprisonment for nine months.

11.In the result, in modification of the order of conviction and

sentence imposed by the court below, it is ordered that:

(i) The conviction under Section 55(i) of the Abkari Act is

set aside and the accused is acquitted of the charge on that

count.

(ii) The conviction under Section 58 of the Abkari Act is

confirmed.

(iii) The sentence imposed by the court below is vacated

and the accused is sentenced to undergo rigorous

imprisonment for nine months and to pay fine of

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Rs.1,00,000/-. Any amount already deposited in terms of

the interim orders will be given due credit to.

The learned Magistrate shall take necessary steps for

execution of the modified sentence hereby imposed. The

appellant shall appear and his sureties shall produce him before

the Judicial Magistrate of First Class, Irinjalakuda on 20.11.2009

to suffer the sentence, with proof of having satisfied the payment

of fine, if paid. Needless to say, the learned Magistrate shall take

necessary action against the appellant and his sureties under

Section 446 Cr.PC., if he does not appear as directed above.

Sd/-

THOTTATHIL B.RADHAKRISHNAN,
Judge.

kkb.19/9.