{"id":195505,"date":"2009-06-01T00:00:00","date_gmt":"2009-05-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sukumaran-vs-state-of-kerala-represented-by-on-1-june-2009"},"modified":"2015-02-28T23:01:23","modified_gmt":"2015-02-28T17:31:23","slug":"sukumaran-vs-state-of-kerala-represented-by-on-1-june-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sukumaran-vs-state-of-kerala-represented-by-on-1-june-2009","title":{"rendered":"Sukumaran vs State Of Kerala Represented By on 1 June, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Sukumaran vs State Of Kerala Represented By on 1 June, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 138 of 2008()\n\n\n1. SUKUMARAN S\/O.RAMANKUTTY, AGED 44 YEARS,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA REPRESENTED BY\n                       ...       Respondent\n\n                For Petitioner  :SRI.P.NOOR SEMIR\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice M.N.KRISHNAN\n\n Dated :01\/06\/2009\n\n O R D E R\n                      M.N. KRISHNAN, J.\n                       ---------------------------\n                CRL.A.NOs.138 & 151 OF 2008\n                       ------------------------------\n               Dated this the 1st day of June, 2009\n\n                           JUDGMENT\n<\/pre>\n
     These appeals are preferred against the conviction and<\/p>\n
sentence in S.C.No.323\/2006 passed by the Additional Sessions<\/p>\n
Judge\/Special Judge for N.D.P.S. Act cases, Thodupuzha. The<\/p>\n
brief facts necessary for the disposal of the appeal are stated<\/p>\n
as follows:\n<\/p>\n
     2. It is the case of the prosecution that on 18..7.2002 at<\/p>\n
about 6 p.m, the officials got reliable information that illicit<\/p>\n
arrack was being distilled in Mattappally Teak Plantation and<\/p>\n
therefore, they proceeded to the said place and they were able<\/p>\n
to see two persons distilling arrack from a distance and on<\/p>\n
their sight they attempted to run away. They were followed<\/p>\n
and the first accused was arrested and the 2nd accused<\/p>\n
escaped from the place.          It is     the     further case of  the<\/p>\n
prosecution that after arresting the 1st accused, he was<\/p>\n
taken to the farm from where they were able to find wash as<\/p>\n
well as arrack. Arrack was found being distilled in a bottle<\/p>\n
besides being stored in a white plastic can.              In the plastic<\/p>\n
                                2<\/span>
\nCRL.A.NOS.138&151\/08<\/p>\n
barrel, they were able to find 50 liters of      wash and   the<\/p>\n
iron barrels contained 200 liters each filled up with wash.<\/p>\n
According to the prosecution,     samples of arrack and wash<\/p>\n
were collected and sealed in accordance with the rules and<\/p>\n
thereafter other liquids were seized and produced before the<\/p>\n
court and prosecution initiated.\n<\/p>\n
     3. In the trial court, PWs 1 to 5 were examined,<\/p>\n
Exts.P1 to P10 and MOs 1 to 11 were marked.\n<\/p>\n
     4. On analysis of the evidence, the trial court found the<\/p>\n
accused guilty of the offences under Section 55(a) and Sections<\/p>\n
8(1) and (2) of the Abkari Act. They were convicted and<\/p>\n
sentenced to undergo imprisonment for a period of two years<\/p>\n
each and to pay a fine of Rs.One lakh each. Default sentence<\/p>\n
for non-payment of the fine was fixed as six months.<\/p>\n
     5. It is against that decision, the first accused has come<\/p>\n
up in appeal as Crl.A.No.151\/2008 and the 2nd accused has<\/p>\n
come up in appeal as Crl.A.No.138\/2008. The points that arise<\/p>\n
for determination in these appeals are whether the trial court<\/p>\n
has erred in arriving at a decision regarding the guilt of the<\/p>\n
accused (2) whether there is anything to interfere with the<\/p>\n
                               3<\/span>
\nCRL.A.NOS.138&151\/08<\/p>\n
quantum of punishment that has been awarded to the accused.<\/p>\n
       6. Point No.1:\n<\/p>\n
       This point   deals  with the question   of  the offence<\/p>\n
committed under the provisions of the AbkariAct. It is the<\/p>\n
case of the prosecution that the Excise Officials, on getting<\/p>\n
reliable information,   went  to  the  teak plantation   called<\/p>\n
Mattappally and from a distance of 15 meters, they saw two<\/p>\n
persons illicitly distilling arrack and rushed to the spot.<\/p>\n
That    two persons escaped and    they were chased and the<\/p>\n
1st accused was caught hold of. He was arrested and the<\/p>\n
illicit arrack was seized.  The sample was taken in a bottle<\/p>\n
from the white can of arrack and the bottle and the samples<\/p>\n
of wash was collected from the other material objects. The<\/p>\n
accused were found in custody of 200 liters of wash in iron<\/p>\n
barrels and 50 liters in plastic barrels.  Illicit arrack was<\/p>\n
found in a bottle and a white can. PWs 1 and 2, who were<\/p>\n
allegedly to be the eye witnesses for the seizure, turned<\/p>\n
hostile and therefore nothing could be elicited from them    to<\/p>\n
support the case of the prosecution.   PW3 is the Preventive<\/p>\n
Officer of the Excise Range Office, Kattappana and he had<\/p>\n
                               4<\/span>
\nCRL.A.NOS.138&151\/08<\/p>\n
given the details. He had spoken about the way in which they<\/p>\n
proceeded to Mattappally Teak Plantation, how the accused<\/p>\n
were found and how the first accused was apprehended and<\/p>\n
also about the factum of the escape by the 2nd accused. He<\/p>\n
has clearly deposed that illicit arrack was collected in a<\/p>\n
bottle from the material objects used for the distillation of the<\/p>\n
arrack.    He was able to find 50 liters of brownish liquid,<\/p>\n
which was wash, and he had also spoken about the collection<\/p>\n
of wash in other barrels as well. It is also his version that in<\/p>\n
the white can there was illicit arrack . According to him,<\/p>\n
since the bottle and the white can      contained illicit arrack,<\/p>\n
they were mixed up and sample was taken and so far as<\/p>\n
brownish liquid wash is concerned, it was taken from other<\/p>\n
containers.\n<\/p>\n
       7. Learned counsel for the accused had brought to my<\/p>\n
notice    the improvements given by the witnesses at the time<\/p>\n
of cross examination. In Ext.P1, there is no statement to the<\/p>\n
effect that they had understood that A1 and A2 were distilling<\/p>\n
illicit arrack. But in cross examination, he would say that he<\/p>\n
has known about it. Similarly, it is also stated that how he had<\/p>\n
                                  5<\/span>
\nCRL.A.NOS.138&151\/08<\/p>\n
sealed the bottles.     It has to be understood that the first<\/p>\n
statement    recorded     or  the mahazar prepared        cannot be<\/p>\n
treated as an encyclopedia of all the materials relevant for<\/p>\n
the purpose of determination of a criminal case. These are all<\/p>\n
acts done by the officials in the official capacity and he has<\/p>\n
explained in his evidence that though he knew that A1 and<\/p>\n
A2   were    the persons found       distilling, since it was   not<\/p>\n
confirmed, he did not write         it at that time.     So far as<\/p>\n
sampling and sealing is concerned, these are official acts<\/p>\n
which done by the persons.        It has also to be remembered<\/p>\n
that there was no delay in producing the same before the<\/p>\n
court with the forwarding note and the chemical analysis<\/p>\n
report also would show that the seal was intact at the time of<\/p>\n
receiving for the purpose of chemical analysis.         A reading of<\/p>\n
the evidence of PW3 inspires confidence in me to believe the<\/p>\n
same and it need not be simply brushed               aside for the<\/p>\n
reasons that    they    are official witnesses. PW3’s evidence is<\/p>\n
cogent and clear and therefore, I do not find any ground to<\/p>\n
discard that evidence just because        independent witness had<\/p>\n
turned hostile, it will not improve the case of the accused.<\/p>\n
                                6<\/span>
\nCRL.A.NOS.138&151\/08<\/p>\n
     8. PW4 is the Assistant Excise Inspector, who had deposed<\/p>\n
about the way how he had produced the material objects, the<\/p>\n
accused and the documents before the court.          He had also<\/p>\n
spoken about the forwarding note which is marked as Ext.P9.<\/p>\n
The   seizure was    on 18.7.2002 and      the samples and   the<\/p>\n
accused were produced before the court on 19..7.2002 itself.<\/p>\n
So, there is no much delay at all in producing the accused as<\/p>\n
well as the material objects in the case.\n<\/p>\n
     9. PW5 is the Excise Range Inspector of Kattappana. He<\/p>\n
had spoken about the receipt of the chemical analysis report,<\/p>\n
which is marked     as Ext.P10.     It  shows   that  it contains<\/p>\n
alcohol. Evidence of PWs 3 to 5 shows about the detection<\/p>\n
and   finding out   of  the   distillation of illicit arrack and<\/p>\n
therefore, I do not find any illegality committed by the court<\/p>\n
below in arriving     at  a   decision that the accused have<\/p>\n
committed the     offences punishable under Section 55(a) and<\/p>\n
Sections 8(1) and (2) of the Abkari Act.\n<\/p>\n
     10. Point No.2:\n<\/p>\n
     Now the next question       is    regarding    the sentence.<\/p>\n
Learned counsel for the appellant very persuasively submitted<\/p>\n
                               7<\/span>
\nCRL.A.NOS.138&151\/08<\/p>\n
before me that they are undergoing imprisonment from<\/p>\n
31.12.2007 and besides that they had also undergone remand<\/p>\n
during the trial stage and therefore, the court should show<\/p>\n
some leniency. The first accused had submitted before the<\/p>\n
court that he has a wife, children and the old mother to be<\/p>\n
looked after and the second accused had stated that he had<\/p>\n
not committed the offence at all. The accused are aged 44<\/p>\n
years each and there is nothing before this Court or the court<\/p>\n
below to show that      they have   criminal backgrounds     on<\/p>\n
previous occasions. Therefore, taking into consideration the<\/p>\n
totality of the facts and circumstances, I feel that some<\/p>\n
leniency can be shown whereby the sentence of imprisonment<\/p>\n
can be reduced to a period of one year each coupled with the<\/p>\n
fine of Rs.One lakh and in default, to undergo S.I for a period<\/p>\n
of six months.\n<\/p>\n
      11. In the result these criminal appeals are disposed of<\/p>\n
as follows:\n<\/p>\n
      (1) Finding of guilt under Section 55(a) and Sections 8<\/p>\n
(1) and (2) of the Abkari Act are sustained.<\/p>\n
      (2) The conviction and sentence passed by the court<\/p>\n
                              8<\/span>
\nCRL.A.NOS.138&151\/08<\/p>\n
below is modified and the accused are directed to undergo<\/p>\n
imprisonment for a period of one year each for the offence<\/p>\n
committed under Section 55 (a) and Sections 8(1) and (2) of the<\/p>\n
Abkari Act. They are also directed to pay a fine of Rs.One<\/p>\n
lakh each and in default,   to undergo S.I for a period of six<\/p>\n
months.    They are also entitled to set off for the remand<\/p>\n
period they had undergone during the trial stage. I make it<\/p>\n
clear that the set off can be given to the person, who had<\/p>\n
undergone pre-trial remand.\n<\/p>\n<\/p>\n
                              M.N. KRISHNAN, JUDGE<\/p>\n
cl<\/p>\n
                        9<\/span>
\nCRL.A.NOS.138&151\/08<\/p>\n
                        10<\/span>
\nCRL.A.NOS.138&151\/08<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Sukumaran vs State Of Kerala Represented By on 1 June, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 138 of 2008() 1. SUKUMARAN S\/O.RAMANKUTTY, AGED 44 YEARS, … Petitioner Vs 1. STATE OF KERALA REPRESENTED BY … Respondent For Petitioner :SRI.P.NOOR SEMIR For Respondent : No Appearance The Hon’ble MR. […]<\/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-195505","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nSukumaran vs State Of Kerala Represented By on 1 June, 2009 - 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\/sukumaran-vs-state-of-kerala-represented-by-on-1-june-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sukumaran vs State Of Kerala Represented By on 1 June, 2009 - 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