{"id":181721,"date":"2007-01-23T00:00:00","date_gmt":"2007-01-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/lukose-vs-state-of-kerala-on-23-january-2007"},"modified":"2016-07-07T00:04:55","modified_gmt":"2016-07-06T18:34:55","slug":"lukose-vs-state-of-kerala-on-23-january-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/lukose-vs-state-of-kerala-on-23-january-2007","title":{"rendered":"Lukose vs State Of Kerala on 23 January, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
Lukose vs State Of Kerala on 23 January, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL A No. 1814 of 2006()\n\n\n1. LUKOSE,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA,\n                       ...       Respondent\n\n                For Petitioner  :ADV.E.S.ASHRAFF(STATE BRIEF)\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice V.RAMKUMAR\n\n Dated :23\/01\/2007\n\n O R D E R\n                                      V. RAMKUMAR, J.\n\n                            ---------------------------------------------\n\n                             CRL.APPEAL No.1814 of 2006\n\n                            ----------------------------------------------\n\n                                  Dt. JANUARY 23, 2007\n\n                                          JUDGMENT\n<\/pre>\n
       In this appeal preferred from the Central Prison, Thiruvananthapuram, the<\/p>\n
appellant who was the sole accused in S.C.No.375\/2002 on the file of the Addl.<\/p>\n
Sessions Court (Abkari), Kottarakkara,  for offences punishable under sec.55(a)<\/p>\n
and 55(i) of the Abkari Act, challenges the conviction entered and the sentence<\/p>\n
passed against him  under sec.55(a) of the said Act.\n<\/p>\n<\/p>\n
       2.  The case of the prosecution is that on 3.6.2000 at  about 8 p.m. in the<\/p>\n
rubber plantation of one Baby of Vadakkumkara veedu, Palamukku, the accused<\/p>\n
was found in possession of 4 litres of illicit arrack in a black jerry can having a<\/p>\n
capacity   of   5   litres   and   that   the     accused   has   thereby   committed   offences<\/p>\n
punishable under secs.55(a) and 55(i) of the Abkari Act.<\/p>\n
       3.   On the accused pleading not guilty to the charge framed against him<\/p>\n
by   the   court   below   for   the   aforementioned   offences,   the   prosecution   was<\/p>\n
permitted to adduce evidence in support of its case.  The prosecution altogether<\/p>\n
examined 5 witnesses as PWs.1 to 5 and got marked 5 documents as Exts.P1<\/p>\n
to P5 and 2 material objects as M.Os.1 and 2.\n<\/p>\n<\/p>\n
       4.     After   the   close   of   the   prosecution   evidence,   the   accused   was<\/p>\n
questioned   under   sec.313(1)(b)   Cr.P.C.   with   regard   to   the   incriminating<\/p>\n
circumstances   appearing   against   him   in   the   evidence   for   the   prosecution.     He<\/p>\n
denied   those   circumstances   and   maintained   his   innocence.       He   had   the<\/p>\n
Crl..A.No.1814\/06                                    2<\/span><\/p>\n
following to submit before court.  He is a headload worker by profession.  While<\/p>\n
he was unloading ration goods for the ration dealer who was a member of the<\/p>\n
Congress political party, a quarrel ensued between them.  He was subsequently<\/p>\n
caught   by   the   police   from   his   house   at   midnight   and   falsely   implicated   in   the<\/p>\n
case.\n<\/p>\n<\/p>\n
         5. The court below did not consider it a fit case for recording an order of<\/p>\n
acquittal   under   sec.232   Cr.P.C..   The   accused   was,   therefore,   called   upon   to<\/p>\n
enter   on   his   defence   and   to   adduce   any   evidence   which   he   might   have   in<\/p>\n
support thereof.  The accused did not adduce any defence evidence.<\/p>\n
         6.  The learned Addl. Sessions Judge as per judgment dt.19.7.2006 found<\/p>\n
the  appellant   not  guilty of  the  offence  punishable  under  sec.55(i)  of  the  Abkari<\/p>\n
Act,   but   found   him   guilty  of   the   offence   punishable   under   sec.55(a)   of   the   Act<\/p>\n
and sentenced him to undergo simple imprisonment for two years and to pay a<\/p>\n
fine of Rs.1 lakh and, on default to pay the fine, to undergo simple imprisonment<\/p>\n
for 6 months more.  It is the said judgment which is assailed in this appeal.<\/p>\n
         7.    I   heard  Adv.   Sri  E.S.Ashraf,  the   learned   counsel  who  defended     the<\/p>\n
appellant   on   State   Brief,   and   Adv.   Sri   K.S.Sivakumar,   the   learned   Public<\/p>\n
Prosecutor who defended the State.\n<\/p>\n<\/p>\n
         8.     The   only   point   which   arises   for   consideration   in   this   appeal   is   as   to<\/p>\n
whether  the conviction  entered   and  the  sentence   passed  against  the  appellant<\/p>\n
are sustainable or not?\n<\/p>\n
\nTHE POINT<\/p>\n
         9.   P.W.1  is the police constable who accompanied the detecting officer<\/p>\n
Crl..A.No.1814\/06                                   3<\/span><\/p>\n
viz.   P.W.2.     P.W.2   is   the   Sub   Inspector   of   Police,   Yeroor   Police   Station.     He<\/p>\n
detected the offence.   PWs.3 to 5 are the independent witnesses to the arrest,<\/p>\n
search   and   seizure.     All   of   them   turned   hostile   to   the   prosecution.     After   the<\/p>\n
conclusion of investigation it was PW.2 himself who laid the charge.<\/p>\n
        10.   The learned counsel appearing for the appellant made the following<\/p>\n
submissions   before   me   in   support   of   his   fervent   plea   for   acquittal   of   the<\/p>\n
appellant:-\n<\/p>\n<\/p>\n
        The offence was allegedly detected at 8 o’ clock in the night of 3.6.2000<\/p>\n
from a rubber plantation.   PWs.1 and 2 claim to have seen the accused in the<\/p>\n
light   provided   by     torch   light.     Both   of   them   did   not   have   any   previous<\/p>\n
acquaintance with the accused who had allegedly made good his escape at the<\/p>\n
time  of  detection.    He  was  arrested  only subsequently  i.e.  on  5.6.2000.    PW.2<\/p>\n
has confessed that he did not get the accused identified by CW.3 who is PW.5.<\/p>\n
There   is,   therefore,   no   acceptable   evidence   to   show   that   it   was   the   accused<\/p>\n
standing in the dock who was detected by PW.1 and 2 in the night of 3.6.2000.<\/p>\n
Similarly,   the   material   objects   seized   in   this   case   on   3.6.2000   were   produced<\/p>\n
before court only on 22.6.2000.  As per sec.36 of the Abkari Act the provisions in<\/p>\n
the Cr.P.C. pertaining to search and seizure are applicable to prosecution under<\/p>\n
the Abkari Act also.  As per  sec.102(3) Cr.P.C., the properties should have been<\/p>\n
produced   before   court   forthwith.     That   has   not   been   done.     In   the   light   of   the<\/p>\n
decisions  in Dominic v. State of Kerala – 1989 (1) KLT 601  and Muraleedharan<\/p>\n
v. S.I. of Police<\/a> – ILR 2007 (1) Kerala 26, delay in sending the material objects to<\/p>\n
the court should be looked upon with suspicion.  The magistrate was not justified<\/p>\n
Crl..A.No.1814\/06                                 4<\/span><\/p>\n
in sending the sample bottle even without a forwarding note or requisition.  There<\/p>\n
is   also   no   acceptable   evidence   to   show   that   the   sample   bottle   which   was<\/p>\n
produced by PW.2 before court was the one which ultimately reached the hands<\/p>\n
of   the   chemical   examiner.     The   conviction   entered   and   the   sentence   passed<\/p>\n
overlooking these aspects cannot be sustained.\n<\/p>\n<\/p>\n
        11.     I   am   afraid   that   I   cannot   agree   with   the   above   submissions.     The<\/p>\n
testimony   of   PWs.1   and   2   which   corroborate   with   each   other   on   material<\/p>\n
particulars,   convincingly   shows   that   while   PW.2   along   with   his   police   party<\/p>\n
including   PW.1   was   proceeding   in   their   jeep   on   patrol   duty,   they   got   credible<\/p>\n
information   from   a   place   called   Palamukku   to   the   effect   that   the   accused   was<\/p>\n
vending illicit arrack.  On proceeding further they came across the accused in the<\/p>\n
vicinity  of   a  rubber   plantation   with   M.O.1  can   having  a  capacity   of   5  litres  and<\/p>\n
MO.2   glass   tumbler.     The   accused   was   seen   in   a   perplexed   and   nervous<\/p>\n
condition.  On interrogation and on testing the contents of the jerry can carried by<\/p>\n
the accused through smell and taste, PW.2 was convinced that the accused was<\/p>\n
selling   illicit   arrack.     PW.2   drew   a   sample   containing   350   ml.   from   the   bulk<\/p>\n
quantity.   The sample bottle was separately packed and sealed.   The accused<\/p>\n
was  thereafter   arrested   and   the   jerry   can   containing   the   bulk   quantity   and   the<\/p>\n
sample bottle were seized under Ext.P1 mahazar.  PW.2 then took the accused<\/p>\n
as well as the material objects and seizure documents to the police station from<\/p>\n
where he registered the above crime.   It was PW.2  himself  who conducted the<\/p>\n
investigation   and   laid   the   final   charge   before   court.     During   the   course   of<\/p>\n
investigation he produced the material objects including the sealed sample bottle<\/p>\n
Crl..A.No.1814\/06                                     5<\/span><\/p>\n
before court on 22.6.2000 as evidenced by Ext.P3 property list.<\/p>\n
         12.    It is true that the prosecution has not produced any forwarding note<\/p>\n
or   requisition seeking the   forwarding   of the contraband liquor to the chemical<\/p>\n
examiner for analysis.   But then   the right-hand side column of Ext.P3 property<\/p>\n
list   itself   contains   a   request   to   send   the   sample   to   the   chemical   examiner   for<\/p>\n
analysis and to get a report from the chemical examiner.  That is sufficient.<\/p>\n
         13.       No   doubt,   the   properties   were   produced   before   court   only   on<\/p>\n
22.6.2000.     But   that   is   not   fatal   to   the   prosecution   in   the   light   of   the   credible<\/p>\n
testimony of PW.2 to the effect that until production before court they were in his<\/p>\n
safe custody.   If  PW.2  could be trusted with for the arrest, search and seizure,<\/p>\n
there   is   no   reason   why   PW.2   cannot   be   believed   when   he   says   that   until<\/p>\n
production of the properties before court, they were in his safe custody.<\/p>\n
         14.     It   is   true   that   the   sample   bottle   was   forwarded   to   the   chemical<\/p>\n
examiner   only   as   per   the   covering   letter   of   the   magistrate   dt.   6.7.2000   as<\/p>\n
revealed by Ext.P4 report of the chemical examiner.  It is also true that there are<\/p>\n
no   contemporaneous   records   maintained   before   the   committal   magistrate   to<\/p>\n
show that the person in charge of the thondy section had despatched the sample<\/p>\n
bottle  to the  chemical  examiner’s  laboratory for analysis.   But  then  the sample<\/p>\n
bottle   was   received   in   court   in   a   sealed   condition.     Ext.P4   report   of   chemical<\/p>\n
analysis   recites   that   a   sample   bottle   containing   350   ml.   of   a   liquid   allegedly<\/p>\n
arrack seized in Crime No.107\/2000 of Yeroor Police Station was received along<\/p>\n
with   the   covering   letter   dt.   6.7.2000   of   the   magistrate.     This   shows   that   the<\/p>\n
sample  bottle  which  was  produced  in this case  was forwarded  to the chemical<\/p>\n
Crl..A.No.1814\/06                                  6<\/span><\/p>\n
examiner by the magistrate.   The  seal on the  sample  as well as the specimen<\/p>\n
seal sent separately to the chemical examiner were found to tally.  In the light of<\/p>\n
the presumption under sec.114 of the Evidence Act this court can presume that<\/p>\n
official acts were properly performed, especially when it was not even remotely<\/p>\n
suggested   by   the   defence   that   the   sample   bottle   despatched   to   the   chemical<\/p>\n
examiner’s laboratory was not the sample bottle produced in this case by PW.2<\/p>\n
along with Ext.P3 property list.\n<\/p>\n<\/p>\n
        15.  The contention based on the question of identity of the accused also<\/p>\n
has no merit.  It is true that both PWs.1 and 2 had no previous acquaintance with<\/p>\n
the   accused.     But   they   were   proceeding   to   the   spot   on   getting   a   credible<\/p>\n
information   from   Palamukku   and   consistent   with   the   information   received   by<\/p>\n
them,   they   did   see   a   person   carrying   a   jerry   can   and   a   glass   tumbler.     Even<\/p>\n
though the said person was able to make good his escape, both  PWs.1  and 2<\/p>\n
were able to see his features in the torch light.   Moreover, PWs.3 to 5 who are<\/p>\n
the independent witnesses to the search and seizure and who are the attestors<\/p>\n
to   Ext.P1   contemporaneous   mahazar   prepared   by   PW.2   from   the   spot   had<\/p>\n
identified the accused as the person who took to his heels  on seeing the police<\/p>\n
party.     PW.2   has   deposed   before   court   that   on   5.6.2000   at   12.45   a.m.   while<\/p>\n
arresting the accused, he could identify him as the person whom he had seen at<\/p>\n
the time of occurrence and that the witnesses who were present at that time had<\/p>\n
also confirmed his identity.  This means that it was after properly  confirming the<\/p>\n
identity of the accused that PW.2 arrested him.   No doubt, PWs.3 to 5 who are<\/p>\n
the independent witnesses have turned unfriendly to the prosecution.  But courts<\/p>\n
Crl..A.No.1814\/06                              7<\/span><\/p>\n
are   not   unfamiliar   with   such   witnesses.     Merely   because   they   have   turned<\/p>\n
disloyal to the prosecution, it does not follow that the evidence of PWs.1 and 2<\/p>\n
who detected the offence should be thrown overboard  (see Sivaraman v. State<\/p>\n
of Kerala<\/a> – 1981 KLT (SN) 9).\n<\/p>\n<\/p>\n
        16.  After an anxious re-appraisal of the oral and documentary evidence in<\/p>\n
this case I am completely in agreement with the court below.  The appellant was<\/p>\n
rightly convicted for the offence punishable under sec.55(a) of the Abkari Act.<\/p>\n
        17.   What  now survives for consideration is the legality and extent of the<\/p>\n
sentence imposed on the appellant.  The quantity involved is only 4 litres of illicit<\/p>\n
arrack and the prosecution has no case that the accused is a previous offender.<\/p>\n
Under   these   circumstances   I   am   of   the   view   that   simple   imprisonment   for   a<\/p>\n
period of one year and fine of Rs.1 lakh would suffice.\n<\/p>\n<\/p>\n
        In the result, this appeal is disposed of confirming the conviction entered,<\/p>\n
but altering the sentence  to simple imprisonment for one year and to pay a fine<\/p>\n
of Rs.1 lakh and, on default to pay the fine, to undergo simple imprisonment for<\/p>\n
four months.\n<\/p>\n<\/p>\n
                                                       (V.RAMKUMAR, JUDGE)<\/p>\n
mt\/-\n<\/p>\n
\nCrl..A.No.1814\/06                                       8<\/span><\/p>\n
                                                                                       V. RAMKUMAR, J.<\/p>\n
                                                                       ——————————————\n<\/p><\/blockquote>\n
                                                                               CRL.APPEAL No.1814\/2006<\/p>\n
                                                                                                 JUDGMENT<\/p>\n<\/blockquote>\n
                                                                       ——————————————\n<\/p><\/blockquote>\n
                                                                                     23.1.2007<\/p>\n<\/blockquote>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Lukose vs State Of Kerala on 23 January, 2007 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL A No. 1814 of 2006() 1. LUKOSE, … Petitioner Vs 1. STATE OF KERALA, … Respondent For Petitioner :ADV.E.S.ASHRAFF(STATE BRIEF) For Respondent :PUBLIC PROSECUTOR The Hon’ble MR. Justice V.RAMKUMAR Dated :23\/01\/2007 O R D […]<\/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-181721","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nLukose vs State Of Kerala on 23 January, 2007 - 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\/lukose-vs-state-of-kerala-on-23-january-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Lukose vs State Of Kerala on 23 January, 2007 - 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