{"id":246016,"date":"2009-08-17T00:00:00","date_gmt":"2009-08-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mohanan-vs-state-of-kerala-on-17-august-2009"},"modified":"2014-10-29T20:54:09","modified_gmt":"2014-10-29T15:24:09","slug":"mohanan-vs-state-of-kerala-on-17-august-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mohanan-vs-state-of-kerala-on-17-august-2009","title":{"rendered":"Mohanan vs State Of Kerala on 17 August, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Mohanan vs State Of Kerala on 17 August, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 447 of 2003()\n\n\n1. MOHANAN S\/O. VELAYUDHAN, THADATHIL VEEDU\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA, REPRESENTED BY EXCISE\n                       ...       Respondent\n\n2. PUBLIC PROSECUTOR, HIGH COURT OF\n\n                For Petitioner  :SRI.S.SUBHASH CHAND\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice M.N.KRISHNAN\n\n Dated :17\/08\/2009\n\n O R D E R\n                       M.N. KRISHNAN, J.\n                = = = = = = = = = = = = = = =\n                 Crl. Appeal NO. 447 OF 2003\n                = = = = = = = = = = = = = = =\n         Dated this the 17th day of August, 2009.\n\n                        J U D G M E N T\n<\/pre>\n
      This appeal is preferred against the conviction and<\/p>\n
sentence passed by the Addl. District and Sessions Judge,<\/p>\n
Adhoc-I, Pathanamthitta in S.C.93\/99.        The accused was<\/p>\n
charge sheeted for offence u\/Ss. 8 and 55(a) of the Abkari Act<\/p>\n
and was found guilty u\/s 55(a) of the Act and convicted<\/p>\n
thereunder and sentenced to undergo rigorous imprisonment<\/p>\n
for a period of one year and to pay a fine of Rs.1,00,000\/- and<\/p>\n
in default to undergo further simple imprisonment for a period<\/p>\n
of six months.    It is against that decision the accused has<\/p>\n
come up in appeal.\n<\/p>\n
      2.   The points that arise for determination are:<\/p>\n
    (1)Whether the materials are sufficient to convict the<\/p>\n
      accused u\/s 55(a) of the Abkari Act?\n<\/p>\n
    (2) In case of guilt, is the sentence excessive?<\/p>\n
Crl. Appeal NO. 447      OF 2003\n                               -:2:-<\/span>\n\n     Points 1 and 2:\n\n<\/pre>\n
     3.    Heard the learned counsel for the appellant as well<\/p>\n
as the Prosecutor. It is the case of the prosecution that on<\/p>\n
17.2.1998 while PW3 and others were on patrol duty they<\/p>\n
found the accused with a plastic carry bag.             He was<\/p>\n
apprehended and when it was examined it was found to<\/p>\n
contain 24 similar looking sealed plastic packets. One such<\/p>\n
packet was opened and it was tested by smell and taste and it<\/p>\n
was found to be illicit arrack. Thereafter that liquid was taken<\/p>\n
as sample in a bottle and it was sealed. The remaining 23<\/p>\n
bottles along with the container was also tied and seized and it<\/p>\n
was produced before Court. Now the learned counsel for the<\/p>\n
appellant had argued the case elaborately on the following<\/p>\n
points.\n<\/p>\n
     4.    There is no materials to prove that things had been<\/p>\n
done properly in this case. The evidence adduce by the official<\/p>\n
witnesses are unsatisfactory and therefore cannot be accepted<\/p>\n
and the prosecution has failed to prove that material objects<\/p>\n
had been properly sealed and produced before Court.<\/p>\n
     5.    Let me first refer to the documentary evidence in<\/p>\n
this matter.  Ext.P1 is the seizure mahazar. It would reveal<\/p>\n
Crl. Appeal NO. 447       OF 2003
\n                                 -:3:-<\/span><\/p>\n
that the accused was found in possession of 24 packets out of<\/p>\n
which one packet was taken out and tested and thereafter in a<\/p>\n
375 ml bottle it was taken as sample and sealed. Rest of the<\/p>\n
22 packets were tied and sealed and when the accused was<\/p>\n
directed to put his seal he refused to do so. Ext.P3 is the<\/p>\n
occurrence report prepared on the basis of the same. Ext.P4<\/p>\n
is the list of thondi articles produced before Court. It is seen<\/p>\n
produced on 17.2.98 itself and there is an office note which<\/p>\n
shows that out of the 24 packets two covers were empty and<\/p>\n
it is seen that there is some leakage.        Therefore it was<\/p>\n
recommended to return it to the Excise officials for production<\/p>\n
until further orders. Ext.P2 is a report submitted by the Excise<\/p>\n
Inspector wherein he states that the sample was collected and<\/p>\n
out of the remaining packets, two packets did show tendency<\/p>\n
of leaking and it is opined by him that the packing is<\/p>\n
conducted in a unskilled manner.\n<\/p>\n
      6.    Ext.P5 is the chemical examination report which<\/p>\n
would show that it was received as per the requisition of the<\/p>\n
Judicial First Class Magistrate, Pathanamthitta through one of<\/p>\n
the Excise Guard, Babu and what was received was a bottle<\/p>\n
containing 150 ml of clear and colourless liquid and that the<\/p>\n
Crl. Appeal NO. 447       OF 2003
\n                               -:4:-<\/span><\/p>\n
seal on the bottle was in tact and found tallied with the sample<\/p>\n
seal provided. The chemical analyst’s report would reveal that<\/p>\n
the said liquid contained ethyl alcohol and it had 27.08% by<\/p>\n
volume of ethyl alcohol.\n<\/p>\n
     7.    Now the learned counsel for the appellant would<\/p>\n
contend before me that there was leakage on the cover seized<\/p>\n
and only one cover has been alleged to be taken from him for<\/p>\n
the purpose of taking sample and therefore these are not leak<\/p>\n
proof methods to accept the case of the prosecution.         She<\/p>\n
would also submit that the evidence of the official witnesses,<\/p>\n
PW3 and PW4 are not convincing in that regard. I had gone<\/p>\n
through the evidence of PWs.3 and 4.\n<\/p>\n
     8.    PW3 is the excise Inspector who had conducted the<\/p>\n
search and had taken sample of the liquid possessed by the<\/p>\n
accused. He had deposed before Court that by taste and smell<\/p>\n
it was found to be alcohol and thereafter in a 375 ml bottle<\/p>\n
sample was taken and the other covers of 150 ml capacity also<\/p>\n
contained illicit arrack. He had been cross examined at length.<\/p>\n
But I do not find any material irregularities or contradictions in<\/p>\n
the evidence of these witnesses. It is true that two bottles<\/p>\n
were found to be empty by the Court officers when it was<\/p>\n
Crl. Appeal NO. 447               OF 2003
\n                                          -:5:-<\/span><\/p>\n
produced before Court.               The office itself has recorded that<\/p>\n
there was leakage and that is why office recommended the<\/p>\n
learned Magistrate to return the covers to the Excise officials<\/p>\n
for safe custody. It is submitted that only one packet had<\/p>\n
been opened and examined. Now it is a settled principle that<\/p>\n
when there are similar types of packets there is no imperative<\/p>\n
rule that sample should be taken from every packet and to be<\/p>\n
sent for chemical analysis. He had also stated that there was<\/p>\n
seal of CW1 and no label. PW4 is the circle inspector of police.<\/p>\n
He had deposed before Court that the accused was only<\/p>\n
having one hand and was possessing plastic cover in his left<\/p>\n
hand. He was apprehended and the covers were seized,<\/p>\n
sample was taken and sealed and produced before Court. It is<\/p>\n
also deposed by him though the accused was directed to put<\/p>\n
his signature he would submit that he had not signed it at all.<\/p>\n
In the cross examination it is submitted by him that requisition<\/p>\n
has been forwarded to the Court and that label has been<\/p>\n
pasted in MO1 and the accused and the witnesses had signed<\/p>\n
in that label and it is also submitted that in MO1 it is still seen,<\/p>\n
MO1<\/p>\n
………………………………………………………………………..”<\/p>\n
Crl. Appeal NO. 447      OF 2003
\n                              -:6:-<\/span><\/p>\n
It is also deposed by him that the marks of the seal affixed by<\/p>\n
him is seen in MO1.      So now the learned counsel would<\/p>\n
contend that PW3 had stated that there was no label but says<\/p>\n
PW4 would state that there was a label.         It has to be<\/p>\n
remembered that the incident took place on 17.2.1998 and<\/p>\n
the witnesses are examined after four and half years. PW4<\/p>\n
then would depose that the label was there and it contains<\/p>\n
signatures of the accused as well as the witnesses and<\/p>\n
deposed before Court that the signature in MO1 is seen even<\/p>\n
at the time of the examination and that the mark of the seal is<\/p>\n
also visible in MO1. Just because PW3 had not given a version<\/p>\n
regarding the label that it does not mean that it is conflicting<\/p>\n
and it cannot be accepted at all. So the evidence of PW3 and<\/p>\n
4 would convincingly establish the following.<\/p>\n
      9.    That they have apprehended the accused, they had<\/p>\n
examined him and found out 24 packets of 150 ml illicit arrack<\/p>\n
out of which one packet was taken as sample put in a 375 ml<\/p>\n
bottle and had sealed it and had also taken possession of the<\/p>\n
remaining 23 packets tied it, sealed it and labeled it and<\/p>\n
produced it before Court on the very same day, i.e. on<\/p>\n
17.2.1998.      I think there is absolute compliance of the<\/p>\n
Crl. Appeal NO. 447      OF 2003
\n                               -:7:-<\/span><\/p>\n
procedural formalities as well in this case.<\/p>\n
      10. It is true that independent witnesses had turned<\/p>\n
hostile. In the decision reported in Sivaraman v. State of<\/p>\n
Kerala<\/a> (1981 KLT S.N. Case No.17 page 9) the Court<\/p>\n
observed that independent witnesses are turning hostile for<\/p>\n
the reasons best known to them.           The Court thereafter<\/p>\n
proceeded to consider whether in such circumstances the<\/p>\n
evidence of the official witnesses can be accepted. The Court<\/p>\n
only cautioned that the evidence of those witnesses had to be<\/p>\n
meticulously scrutinized and when on consideration it is found<\/p>\n
to be reliable and acceptable there is nothing standing in the<\/p>\n
way of the Court in accepting that evidence as well. So the<\/p>\n
evidence of PWs.3 and 4 is acceptable and they have no axe to<\/p>\n
grind against the accused.     So as discussed by me earlier<\/p>\n
procedural formalities are properly complied with in this case<\/p>\n
and therefore the finding of guilt u\/s 55(a) of the Abkari Act<\/p>\n
cannot be interfered with and it is sustained.<\/p>\n
      11. Now turning to the question of sentence. The Court<\/p>\n
below has convicted the accused and sentenced him to<\/p>\n
undergo rigorous imprisonment for a period of one year and<\/p>\n
to pay a fine of Rs.1,00,000\/- and in default to undergo six<\/p>\n
Crl. Appeal NO. 447     OF 2003
\n                               -:8:-<\/span><\/p>\n
months imprisonment further. The accused was found to be in<\/p>\n
possession of 3.600 litres of arrack. When questioned u\/s 313<\/p>\n
he had submitted that he has got his wife and two children<\/p>\n
and aged mother to be looked after and there is no other<\/p>\n
source of income and therefore he should be a pardoned.<\/p>\n
Taking into consideration the quantum involved and the other<\/p>\n
circumstances of the dare consequence that may have to be<\/p>\n
faced by the members of the accused’s family I am inclined to<\/p>\n
show leniency towards the sentence. I think justice can be<\/p>\n
met by directing him to undergo simple imprisonment for a<\/p>\n
period of four months and to pay a fine of Rs.1,00,000\/- and<\/p>\n
in default to undergo a further imprisonment for a period of<\/p>\n
two months.\n<\/p>\n
     In the result the Crl.Appeal is disposed as follows:<\/p>\n
     1)     Finding of guilt u\/s 55(a) of the Abkari Act is<\/p>\n
sustained.\n<\/p>\n
     2)    The sentence is modified and the accused is<\/p>\n
sentenced to undergo simple imprisonment for a period of<\/p>\n
four months and to pay a fine of Rs.1,00,000\/- and in default<\/p>\n
to undergo simple imprisonment of two months.<\/p>\n
Crl. Appeal NO. 447   OF 2003
\n                            -:9:-<\/span><\/p>\n
     4) The accused is entitled to entitled to set off as<\/p>\n
contemplated under S.428 Cr.P.C.\n<\/p>\n
     5)  The lower Court shall execute the sentence.<\/p>\n
                             M.N. KRISHNAN, JUDGE.\n<\/p>\n
ul\/-\n<\/p>\n
Crl. Appeal NO. 447 OF 2003
\n                        -:10:-<\/span><\/p>\n
                               M.N. KRISHNAN, J.\n<\/p>\n
                              = = = = = = = = = =
\n                             Crl.A. No. 447 OF 2003
\n                           = = = = = = = = = = =<\/p>\n
                                J U D G M E N T<\/p>\n
                               17th August, 2009<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Mohanan vs State Of Kerala on 17 August, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 447 of 2003() 1. MOHANAN S\/O. VELAYUDHAN, THADATHIL VEEDU … Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY EXCISE … Respondent 2. PUBLIC PROSECUTOR, HIGH COURT OF For Petitioner :SRI.S.SUBHASH CHAND For Respondent : […]<\/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-246016","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nMohanan vs State Of Kerala on 17 August, 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\/mohanan-vs-state-of-kerala-on-17-august-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mohanan vs State Of Kerala on 17 August, 2009 - 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