IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1588 of 2007()
1. THANKAPPAN, S/O.PAL PILLAI,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :LIJU MP[STATE BRIEF]
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.K.MOHANAN
Dated :19/06/2008
O R D E R
V.K.MOHANAN, J.
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CRL.A. No.1588 OF 2007
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Dated, 19th June, 2008.
JUDGMENT
This jail appeal is preferred by the accused in Sessions
Case No.392 of 2001 challenging the conviction and sentence
passed by the court of the Addl. Sessions Judge for the trial
of Abkari cases, Neyyattinkara by its judgment dated
30.4.2007 by which the appellant is convicted under Section
58 of the Abkari Act and sentenced to undergo rigorous
imprisonment for a period of 3 years and to pay a fine of
Rs.1,00,000/-(one lakh only), and in default of payment of
fine, to undergo rigorous imprisonment for a period of 6
months.
2. This appeal is prosecuted by Adv. Sri Liju M.P.,
appointed as State Brief.
3. The prosecution case is that the Excise Inspector of
Amaravila Excise Range office, on 13-4-1999, at about 11.30
a.m. while conducting patrol duty, found the accused at
Amaravila-Kattiluvita road, in front of Government Tiles
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Factory at Keezhkolla Desom, Chenkal Village , in possession
of a 5 litre black jerrycan which on examination was found
to contain 3 litres of arrack in it, which the accused
possessed in contravention of the provisions of the Abkari
Act and thereby committed the offence punishable under
section 58 of the Abkari Act. After effecting seizure of thondi
article and complying with the legal formalities, the accused
was arrested and a case was registered. After the arrest of
the accused, the crime and occurrence report was lodged
before the Judicial Magistrate of the Ist Class-II,
Neyyattinkara. After completing the investigation, Final
Report was laid by another Excise Inspector of Amaravila
Excise Range, upon which the court took cognizance and the
case was committed to the Sessions Court,
Thiruvananthapuram, which in turn made over to the
Assistant Sessions Court, Neyyattinkara and later on, the case
was made over to the Addl.Sessions Court for the trial of the
Abkari Act cases, Neyyattinkara.
4. In the trial court, the accused was produced from
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jail and he was represented by a Lawyer appointed by the
Taluk Legal Service Committee, Neyyattinkara and framed a
charge against the accused under section 58 of the Abkari
Act which was read over and explained to him, but he denied
the charge which resulted in further trial of the case.
Accordingly, PWs 1 to 5 were examined on the side of the
prosecution and Exts.P1 to P10 were marked and M.O-1 was
marked as material object. No evidence was adduced from
the side of the defence.
5. During the course of trial, four issues were framed
by the court below and finally, the trial court found that the
accused is guilty of the offence under section 58 of the Abkari
act and accordingly he was sentenced to undergo rigorous
imprisonment for a period of 3 years and to pay a fine of
Rs.1,00,000/-(Rs.one lakh only). It is also ordered to
undergo rigorous imprisonment for a period of 6 months in
case of default of payment of fine amount. It is the above
finding and conviction of the trial court as well as the
sentence being challenged in this appeal.
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6. I have heard the counsel for the appellant Sri Liju
M.P., appointed as State Brief, and the learned Public
prosecutor. I have perused the materials and evidence
available on record and also considered the arguments
advanced by the counsel for the appellant as well as the
public Prosecutor.
7. The crux of the prosecution allegations is that the
accused was found in possession of 3 litres of illicit arrack in
a 5 litre can when he was arrested on 13-4-1999. To prove
the prosecution case, though six charge witnesses were
cited, of whom CWs 4 and 5 were given up by the Public
Prosecutor and others were examined as PWs.1 to 4. PW-5,
the Thondy Section Clerk of the court of the Judicial First
Class Magistrate, Neyyattinkara was examined as PW-5
additionally while the documents from the Chemical Lab was
caused to be produced and marked as Exts.P7 to P9, in order
to prove the validity of the Chemical report, Ext.P6. PWs 2 to
4 are the Excise Officials of whom PW2 is the Preventive
Officer of the Amaravila Excise Range, who accompanied the
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Detecting Officer, the Excise Inspector of Amaravila Excise
Range at the time of detection. Though PW-1 was cited to
prove the seizure mahazar, he turned hostile to the
prosecution. The official witnesses deposed before the court
in terms of the charge. PW-2 deposed that they found the
accused walking with a 5 litre can who, on suspicion, was
intercepted and the excise officials verified the contents of
the can by smelling and tasting the liquid thereof and found
to be illicit arrack and accordingly the accused was arrested
and prepared Ext.P1 mahazar. PW-2 is one of the
signatory of Ext.P1 mahazar. He also deposed about the
procedure adopted by the excise officials while effecting the
seizure, sealing of the can etc. PW2 had categorically
identified M.O-1 can as well as the accused in the court.
PW.3, the detecting officer deposed in favour of the
prosecution and he corroborated the evidence of PW-2. The
trial court found that though PWs-2 and 3 were cross
examined in detail, their evidence are unshaked believable
and their versions are credible. PW-4, the Excise Inspector
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who conducted investigation, was cross examined for the
defence side, but nothing was brought out against the
prosecution case. Thus according to the prosecution, the
charge against the appellant/accused proved correctly and
the judgment of the court below is perfectly valid and the
appellant deserves to be convicted.
8. On the other hand, the counsel for the appellant
pointed out that the prosecution case itself is a false one.
In order to substantiate the case, the learned counsel for the
appellant invited my attention to the deposition of PW-5, the
Thondy Section Clerk of the trial court and submitted that
the M.O-1 can does not contain signature of the accused,
witnesses and the detecting officer. On going by the
deposition of PW-5, it can be seen that on 13-4-1999, he had
received the thondy article under Ext.P4 on verification of
the tamper proof nature of the seal of the thondy that it
was produced tamper proof that he registered the same in
the thondy Register in page 64 as T 213/1999 which
identified as Ext.P10. PWs 2 and 3 when cross examined in
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the court identified MO-1 can. They have also deposed in the
court that Ext.P1 mahazar contains their signature and
effectively sealed the can in a tamper proof manner and
labelled the same on the spot and prepared the crime and
occurrence report. It is also stated that the thondy article
was received in Court on 13-4-1999 as T.213/99 that the
court received the thondy with the seal in a tamper proof
condition. The evidence of PWs 2 and 3 corroborated the
evidence of PW-5.
9. After an elaborate discussion and appreciation of the
evidence of PW-5, the trial court found in favour of the
prosecution regarding the sealing of MO-1, sampling and
sending the samples for chemical examination in favour of
the prosecution. Though PWs 2,3 and 5 were cross examined
extensively, nothing was brought out to disbelieve their
version. The trial court found that the prosecution cannot be
blamed for the omissions, if any, committed by the Thondy
Section Clerk or by the learned Magistrate and it is also held
that the evidence adduced by the Thondy Section Clerk,
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PW-5, who is a public servant who deposed as the mouth
piece of the learned Magistrate is uninterested, untainted,
unbiased and without prejudice. Thus the trial court came
into the conclusion that the sampling was effected properly
and the sample bottle was made tamper proof and properly
forwarded to the Chemical Examiner, in the same condition,
without any interference from any quarters.
10. I am satisfied that the finding of the court below
that the Chemical Examiner in the report, Ext.P6 certified
that such a sample bottle was received there, the seal of
which was tallied with the sample seal provided.
11. In this appeal, the only point for consideration is
regarding the mode of seizure on M.O-1 and also the
sampling etc. about which I have already discussed and
came into the conclusion that the finding of the court below is
correct and nothing brought out to take a different view.
12. Counsel for the appellant submitted that the
sentence awarded against the appellant is exorbitant and
disproportionate to the allegations levelled against him.
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Therefore, it is submitted that the sentence may be reduced.
On the other hand, the learned Public Prosecutor submitted
that the appellant herein involved in four more cases besides
the present one and therefore he is not entitled to get any
leniency in the matter of sentence. Inviting my attention to
the judgment dated 12-6-2008 in Crl.A.No.1586/2007, the
learned counsel for the appellant submitted that this Court
in another case interfered and reduced the substantial
sentence and further requested that the same treatment may
be given to the appellant in this case also. It is relevant to
note that the fine awarded in this case is the minimum
amount of fine and therefore no interference is warranted at
all. According to me, considering the entire facts and
circumstances involved in the case, the substantive
sentence of rigorous imprisonment for three year and the
default sentence of 6 months can be reduced into Rigorous
imprisonment for a period of one year and rigorous
imprisonment for a period of three months respectively.
No other point brought to my notice for consideration.
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13. In the result, this appeal is allowed partly and the
conviction and sentence of fine imposed on the appellant are
upheld. But the substantive sentence of imprisonment is
modified and reduced to one year and default sentence is
also reduced to 3 months. As the trial court has already
allowed set off, no separate order is necessary under that
count.
14. The records shall be sent to the court below
forthwith along with the copy of the judgment. Revised
warrant of commitment shall be issued by the court below
immediately.
V.K.MOHANAN, JUDGE
kvm/-
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V.K.MOHANAN, J.
CRL.A. No.1588/2007
Judgment
Dated:19-6-2008