{"id":181102,"date":"2008-12-18T00:00:00","date_gmt":"2008-12-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/chekkutty-vs-the-excise-inspector-on-18-december-2008"},"modified":"2016-06-14T21:26:50","modified_gmt":"2016-06-14T15:56:50","slug":"chekkutty-vs-the-excise-inspector-on-18-december-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/chekkutty-vs-the-excise-inspector-on-18-december-2008","title":{"rendered":"Chekkutty vs The Excise Inspector on 18 December, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
Chekkutty vs The Excise Inspector on 18 December, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 64 of 2004()\n\n\n1. CHEKKUTTY,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. THE EXCISE INSPECTOR, MANJERI.\n                       ...       Respondent\n\n2. STATE OF KERALA,\n\n                For Petitioner  :SMT.T.J.SEEMA\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice V.K.MOHANAN\n\n Dated :18\/12\/2008\n\n O R D E R\n                         V.K. MOHANAN, J.\n                       ------------------------------\n                        Crl. A.No. 64 of 2004\n                    ------------------------------------\n               Dated this the 18th day of December, 2008\n\n                             JUDGMENT\n<\/pre>\n
      This appeal is preferred by the sole accused in S.C No.360\/2000<\/p>\n
on the file of the Additional District and Sessions Judge (Adhoc) Fast<\/p>\n
Track Court No.1, Manjery challenging his conviction and sentence<\/p>\n
under Section 55(a) of the Abkari Act.\n<\/p>\n
      2.    The prosecution case is that on 27\/10\/1997 at about 5.45<\/p>\n
P.M, the accused was found in possession of 3 litres of illicit arrack in<\/p>\n
a white Can having capacity of 5 litres at Vettathur Desom and thereby<\/p>\n
committed an offence punishable under Section 55(a) of the Abkari<\/p>\n
Act. On the basis of said allegation, Crime No.24\/1997 was registered<\/p>\n
in the Excise Range, Manjery. On completion of investigation, charge<\/p>\n
was laid before the Judicial First Class Magistrate Court, Malappuram,<\/p>\n
wherein C.P.No.55\/2000 was instituted. Learned magistrate as per his<\/p>\n
order dated 31\/10\/2000 in C.P. No. 55\/2000 committed the case to the<\/p>\n
Sessions Court. Sessions Court made over the case to the trial court<\/p>\n
for disposal.\n<\/p>\n
Crl. A.No. 64 \/ 2004
\n                                       2<\/span><\/p>\n
       3.       On appearance of the accused, charge was framed, which<\/p>\n
was read over and explained to him. He pleaded not guilty, which<\/p>\n
resulted in the further trial of the case, during which PWs 1 to 6 were<\/p>\n
examined and Exhibits P1 to P8 were marked from the side of the<\/p>\n
prosecution. M.O.1 Can was identified and marked as material object.<\/p>\n
The accused was questioned under Section 313 of Cr.P.C. and he<\/p>\n
denied all the incriminating circumstances came out in evidence.        He<\/p>\n
took the stand of total denial. No evidence was adduced from the side<\/p>\n
of the accused. The trial court after considering the evidence of both<\/p>\n
prosecution as well as defence, came to the conclusion that the accused<\/p>\n
has committed the offence charged against him and accordingly he was<\/p>\n
convicted under Section 55(a) of the Abkari Act. Consequently, after<\/p>\n
hearing the accused, he was sentenced to undergo Rigorous<\/p>\n
Imprisonment for 5 years and to pay a fine of Rs.1,00,000\/-. He was<\/p>\n
further directed to undergo Simple Imprisonment for a further period<\/p>\n
of one year, in case of default in the payment of fine amount. It is the<\/p>\n
above conviction and sentence challenged in this appeal.<\/p>\n
       4.       I have heard learned counsel appearing for the appellant as<\/p>\n
Crl. A.No. 64 \/ 2004
\n                                    3<\/span><\/p>\n
well as the Public Prosecutor.\n<\/p>\n
       5.       The main contention advanced by the counsel is that the<\/p>\n
M.O.1 Can was not seized from the appellant. Therefore, the appellant<\/p>\n
was falsely implicated by PW1. According to the learned counsel, the<\/p>\n
appellant was called upon to sign some papers by the Excise Party and<\/p>\n
as well as PWs 3 and 4 were asked to affix their signatures on some<\/p>\n
papers. It is also the case of the counsel that, in fact, the crime was<\/p>\n
registered against one Velayudhan and not against the appellant and it<\/p>\n
was Velayudhan, who was taken into custody along with the<\/p>\n
contraband articles. Thus accordingly, the accused is falsely implicated<\/p>\n
in the above crime. There is no independent evidence to corroborate the<\/p>\n
evidence of the witnesses. Therefore, according to the counsel, the<\/p>\n
conviction and sentence passed by the court is liable to be set aside. It<\/p>\n
is also the case of the counsel that M.O.1 which produced before the<\/p>\n
court did not contain any liquid. Therefore, the possibility of tampering<\/p>\n
cannot be proved.      According to the learned counsel, the story of the<\/p>\n
prosecution that 2 litres and 625 ml of illicit arrack were evaporated,<\/p>\n
cannot be swallowed without a pinch of salt. Thus according to the<\/p>\n
Crl. A.No. 64 \/ 2004
\n                                      4<\/span><\/p>\n
learned counsel, the appellant\/accused is entitled to get the benefit of<\/p>\n
doubt. It is also the case of the counsel that the sentence imposed is<\/p>\n
disproportionate and exorbitant.\n<\/p>\n
       6.       Learned Public Prosecutor submitted that there was no<\/p>\n
serious attack from the part of defence against the seizure and to the<\/p>\n
evidence of the departmental witnesses. It is also submitted by the<\/p>\n
Public Prosecutor that points raised in this appeal has already been<\/p>\n
dealt with by the trial court and by assigning convincing reason, the<\/p>\n
trial court rejected those contentions and found that the accused is<\/p>\n
guilty of the charge levelled against      him. Thus, according to the<\/p>\n
learned Public Prosecutor, no ground is made out to interfere with the<\/p>\n
order of conviction passed by the court below.\n<\/p>\n
       7.       I have carefully considered the contentions advanced by<\/p>\n
both the counsel for the appellant as well as Public Prosecutor and also<\/p>\n
perused the evidence and materials on record. PWs.1 and 2 are the<\/p>\n
main official witnesses cited and examined by the prosecution to<\/p>\n
prove the allegation against the accused. PWs 1 and 2            in the<\/p>\n
depositions categorically stated that while they were on patrol duty<\/p>\n
Crl. A.No. 64 \/ 2004
\n                                    5<\/span><\/p>\n
along with Excise party around Cheruvayoor-Vattathur and while they<\/p>\n
were proceeding towards Mannattu side from Vettatur, the accused<\/p>\n
was found carrying M.O.1 Can in front of the tea shop, on the road<\/p>\n
side. On some doubt, the accused was intercepted and examined the<\/p>\n
contents of M.O. 1 Can by smelling and tasting and found that contents<\/p>\n
were illicit arrack. Thus, as per Exhibit P1 mahazar, the M.O. 1 Can<\/p>\n
and the contents therein were seized in the presence of independent<\/p>\n
witnesses and sample was drawn then and there. Though PWs 1 and 2<\/p>\n
were cross examined, nothing was brought to disbelieve their version.<\/p>\n
It is true that the independent witnesses mainly PWs 3 and 4 were cited<\/p>\n
and examined to prove the seizure of sample of the illicit arrack, were<\/p>\n
turned hostile. It is to be noted that though PWs 3 and 4 were turned<\/p>\n
hostile, they have admitted their signature in Exhibit P1, mahazar.<\/p>\n
During admitting the signature in Exhibit P1 mahazar, they have also<\/p>\n
deposed that they put their signature in the presence of PWs 1 and 2<\/p>\n
and the accused, at the place of occurrence. Normally, there is no legal<\/p>\n
bar to accept the evidence of official witnesses and to use the same to<\/p>\n
convict the accused. If evidence of such official witnesses are not free<\/p>\n
Crl. A.No. 64 \/ 2004
\n                                       6<\/span><\/p>\n
from contradiction or doubt, naturally the court will in loath accepting<\/p>\n
such evidence unless the same is corroborated from independent<\/p>\n
evidence. In the present case, absolutely there is no contradiction or<\/p>\n
infirmity or doubt regarding the veracity of the depositions of PWs.1<\/p>\n
and 2. PWs 3 and 4 though turned hostile, deposed that they put their<\/p>\n
signature at the spot in the presence of accused as well as PWs. 1 and<\/p>\n
2. Thus, the prosecution has succeeded in establishing and proving the<\/p>\n
seizure of       illicit arrack about 3 litres from the possession of the<\/p>\n
accused.\n<\/p>\n
       8.       One of the contentions taken by learned counsel for the<\/p>\n
appellant is that the contraband article was not seized from the<\/p>\n
possession of the accused, on the other hand the same was effected<\/p>\n
from the possession of one Velayudhan. The above submission was<\/p>\n
made on the basis of the name happened to be shown in Exhibit P1 and<\/p>\n
other documents. The explanation offered by PWs 1 and 2 is to the<\/p>\n
effect that the father’s name of the accused is Velayudhan and while<\/p>\n
repeating the name of the accused in the documents, the name<\/p>\n
Chekkutty is omitted and it is only a clerical mistake. On perusal of<\/p>\n
Crl. A.No. 64 \/ 2004
\n                                      7<\/span><\/p>\n
Exhibit P1, which is a contemporaneous document, it can be seen that<\/p>\n
according to prosecution, the seizure was effected from the possession<\/p>\n
of Chekkutty, S\/o. Velayudhan, the accused. It is also in evidence that<\/p>\n
the accused is the person taken into custody from the spot along with<\/p>\n
the contraband article. Evidence of PWs 1and 2 further show that it was<\/p>\n
the accused Chekkutty, who arrested from the spot with the contraband<\/p>\n
article and no person          namely Velayudhan was arrested. The<\/p>\n
investigating officer, PW6 also deposed before the court that it was the<\/p>\n
accused, who arrested from the place while effecting the seizure. From<\/p>\n
the above materials and evidence, I am of the view that the contention<\/p>\n
regarding the identity of the accused is rightly dealt with by the court<\/p>\n
and no case is made out to take a different view in favour of the<\/p>\n
defence.\n<\/p>\n
       9.       Another contention raised by the appellant\/accused is to the<\/p>\n
effect that at the time of trial, M.O. 1 Can contained no contraband<\/p>\n
article namely illicit arrack. Therefore, it is the case of the appellant as<\/p>\n
well as his counsel that the prosecution has tampered with the evidence<\/p>\n
and therefore, accused cannot be convicted. From Exhibit P1, it is<\/p>\n
Crl. A.No. 64 \/ 2004
\n                                     8<\/span><\/p>\n
crystal clear that seizure was effected on 27\/10\/1997 at about 5.45 P.M.<\/p>\n
The place of occurrence is a remote village far away from the Excise<\/p>\n
Range Office and after the seizure of the contraband article, the Excise<\/p>\n
party reached in the Range Office and the articles were entrusted with<\/p>\n
the Excise Range Office. From there, on subsequent day along with the<\/p>\n
accused, the properties were produced before the court as per Exhibit<\/p>\n
P6 property list. In Exhibit P6, it is specifically mentioned that M.O.1<\/p>\n
contained 2.62 ml of illicit arrack and the contraband article was<\/p>\n
received in the Magistrate Court as per Exhibit P6 property list and the<\/p>\n
same was approved by learned magistrate. In the juncture, it is relevant<\/p>\n
to note that the sample was drawn from the spot itself and the same was<\/p>\n
sent for chemical examination through the court and finally obtained<\/p>\n
Exhibit P8 chemical analysis report. Chemical analysis report also<\/p>\n
proves that one seized from the possession of the accused is illicit<\/p>\n
arrack. Till the time of committal i.e. on 31\/10\/2000 from the date on<\/p>\n
28\/10\/1997, M.O.1 Can was kept in the committal court. Thereafter,<\/p>\n
M.O.1 can was sent to the various courts including the court of<\/p>\n
Sessions and finally to the trial court. There is evidence to show that<\/p>\n
Crl. A.No. 64 \/ 2004
\n                                       9<\/span><\/p>\n
cap of the Can was kept in tight and there was no lid in M.O.1 Can. It<\/p>\n
is also in evidence that the cap was tightened by inserting paper pieces,<\/p>\n
which might have been perished in the due course. It is also in evidence<\/p>\n
that the seal was intact and the same was not tampered at all. Therefore,<\/p>\n
in the above backgrounds, the trial court            found that the liquid<\/p>\n
contained in the M.O.1 might have been evaporated because of its<\/p>\n
volatile nature. Thus, according to the trial court, no bonus can be<\/p>\n
given to the defence on that accord. I find no reason to take a different<\/p>\n
view deviating from the reasons and conclusion arrived at by the trial<\/p>\n
court. Therefore, the finding arrived at by the trial court that the<\/p>\n
accused has committed offence which charged against him deserves no<\/p>\n
interference and accordingly, the conviction is confirmed.<\/p>\n
       10.      With respect to the sentence, the learned counsel submitted<\/p>\n
that even according to the prosecution the quantity alleged to have<\/p>\n
possessed by accused is only 3 litres of illicit arrack and he is not a<\/p>\n
habitual offender and he is now at the age of 56 years. Therefore, the<\/p>\n
counsel prays that lenient view may be taken.\n<\/p>\n
       11.      On considering the above submissions on merit, I am of<\/p>\n
Crl. A.No. 64 \/ 2004
\n                                     10<\/span><\/p>\n
the view that certain modification can be brought with respect to the<\/p>\n
sentence. It is to be noted that the quantity involved in this case is<\/p>\n
about 3 litres of illicit arrack and at the time of trial, the accused was at<\/p>\n
the age of 51 years, now he crossed 56 years. Therefore, according to<\/p>\n
me imprisonment of one year is sufficient to meet the ends of justice.<\/p>\n
Therefore, the sentence of imprisonment is reduced into one year from<\/p>\n
5 years. As the fine amount is fixed to the tune of minimum statutory<\/p>\n
amount, no interference is called for. But the default sentence is<\/p>\n
reduced from one year to one month. Set off is allowed under Section<\/p>\n
428 of Cr.P.C.\n<\/p>\n
       In the result, the appeal is devoid of merit and the same is<\/p>\n
dismissed, but subject to the above modification with respect to the<\/p>\n
sentence.\n<\/p>\n<\/p>\n
                                      V.K. MOHANAN, JUDGE<\/p>\n
scm<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Chekkutty vs The Excise Inspector on 18 December, 2008 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 64 of 2004() 1. CHEKKUTTY, … Petitioner Vs 1. THE EXCISE INSPECTOR, MANJERI. … Respondent 2. STATE OF KERALA, For Petitioner :SMT.T.J.SEEMA For Respondent : No Appearance The Hon’ble MR. Justice V.K.MOHANAN Dated :18\/12\/2008 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-181102","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nChekkutty vs The Excise Inspector on 18 December, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/chekkutty-vs-the-excise-inspector-on-18-december-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Chekkutty vs The Excise Inspector on 18 December, 2008 - 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