Abdul Salam v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **TUESDAY, THE 11TH DAY OF DECEMBER 2012/20TH AGRAHAYANA 1934** **Crl.Rev.Pet.No. 1631 of 2002 ( ) -------------------------------CRA.25/1999 of ADDL. SESSIONS COURT (ADHOC), KASARAGOD SC.40/1998 of SUB COURT, HOSDRUG** ## **REVISION PETITIONER(S)/APPELLANT/2ND ACCUSED::** **---------------------------------------------** **ABDUL SALAM, S/O. ISMAIL, AKKALATH HOUSE, KANHANGAD, KASARAGOD DISTRICT.** **BY ADVS.SRI.M.RAMESH CHANDER SRI.V.TEKCHAND** ## **COMPLAINANT(S)/RESPONDENT/COMPLAINANT::** **---------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR** **HIGH COURT OF KERALA, ERNAKULAM.** **2. S.I. OF POLICE, CHITTARIKKAL POLICE STATION, KANHANGAD.** ## **BY PUBLIC PROSECUTOR SRI. ROY THOMAS** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** das ## **N.K.BALAKRISHNAN, J. ==================** ## **Crl.R.P. No. 1631 of 2002** ## **========================= Dated this the 11[th] day of December, 2012** ## **ORDER** The petitioner who was the second accused, was convicted for the offence punishable under Sec.55(a) of Abkari Act. He was sentenced to R.I for three years and to pay Rs.1 lakh as fine. The charge sheet was laid against five accused persons. A1 was acquitted by the learned Asst. Sessions Judge. The appeal filed by this petitioner was, after reappraisal of the entire evidence on record, dismissed by the appellate court. This revision petition is filed challenging the same. 2. The case of the prosecution is that on 13.06.1997 at about 10PM, PW2 the S.I of police had received a reliable information that liquor was being transported in Jeep bearing registration No.KL-14A 6461 along the Kamballoor- chittarikkal road. Hence, the S.I Crl.R.P.No.1631/2002 : 2 : and other police officials were waiting on the road at about 10.15PM. When the jeep aforesaid was seen coming along the road, the police officials showed signal to stop the vehicle. But the petitioner herein, who was the driver of the jeep did not stop the jeep and proceeded further. Hence, the police party chased the jeep driven by the petitioner in the police jeep. Later, after chasing the vehicle, the jeep which was driven by the petitioner was found in the rubber estate of one Soopi Haji situated at Pavel. When the jeep was examined it contained two cases each containing 60 bottles of IMFL. It was noted that these liquor bottles were intended to be sold only in Mahe (Pondicherry state) and not to be sold in the State of Kerala. A1 was the R.C owner of that jeep. A3 and A5 were also identified. After conducting investigation, the charge sheet was laid against all the accused persons. 3. PW1 to PW7 were examined and Exts.P1 to P9 were marked. M.O.1 to M.O.3 were also identified and Crl.R.P.No.1631/2002 : 3 : marked. Out of them, M.O.3 series are the 58 brandy bottles of IMFL of different variety. M.O.2 contained the inscription that it was to be sold in Mahe. 4. The trial court found that though A1 was the RC owner of the vehicle, he was not present at the time of detection of the case and so he was acquitted. It was found that the jeep in question was driven by the petitioner herein who was the second accused. Hence, the petitioner herein was convicted and sentenced by the courts below. The appellate court had a reappraisal of the entire evidence. That court accepted the oral evidence given by PWs2 and 3 and other circumstances to hold that the jeep in question was driven by the second accused who is the son of the RC owner (A1). It was further found that the liquor bottles were being carried in that jeep by the petitioner herein. The conviction and sentence passed by the trial court against this petitioner was confirmed by the appellate court. Crl.R.P.No.1631/2002 : 4 : 5. The learned counsel for the revision petitioner submits that there is no acceptable evidence to prove that it was the petitioner who drove the jeep at the relevant time. There was no sufficient light to identify the petitioner. It is further argued that admittedly the jeep was not stopped but proceed further or sped away and so it was not possible for Pws 2 and 3 to identify the petitioner as the person who drove the jeep at the relevant time. The learned public prosecutor submits that the evidence given by PWs 2 and 3 was thoroughly scanned by the two courts below. The further fact is that PW4, one independent witness stated that A2 was the person who was usually seen driving the jeep involved in this incident. There is another circumstance also. The petitioner is the son of the RC owner who was arrayed as the first accused. Viewed in that back ground the evidence given by PW4 also assumes much significance. Crl.R.P.No.1631/2002 : 5 : 6. The contention that it was not possible for PWs 2 and 3 to identify the driver when the vehicle was being driven cannot be accepted. Since, PWs 2 and 3 have sworn before the court that they could identify the petitioner as the person who drove the jeep at that time. They have even mentioned that it was “Salam” the petitioner herein who drove the jeep. There was no case that the petitioner was not known to PWs 2 and 3. They have also stated that while they were chasing the police jeep, in the light of the police jeep also, they could identify the petitioner. Those aspects were high lighted by the two courts below to hold that there was no difficulty for PWs 2 and 3, the police officials who were waiting for the jeep (which was transporting liquor), to identify the petitioner as the driver. The further fact is that PW4 had also occasion to see the petitioner driving this jeep. As stated earlier, he is the son of the R.C owner of the jeep. The cumulative effect of the circumstances Crl.R.P.No.1631/2002 : 6 : and evidence would leave no scintilla of doubt that the identity of the petitioner as the driver of the jeep at the relevant time could be proved beyond reasonable doubt. 7. Though attempt was made by the accused to contend that there was no acceptable evidence regarding the seizure and sampling of the contraband articles, the evidence given by PWs 2, 3 and other officials would clearly show that the liquor bottles were sealed then and there and the labels were also affixed on those liquor bottles. The further fact is that all those liquor bottles were having the label declaration that those liquor bottles were to be sold only in Mahe (State of Pondicherry). That would make it further clear that the liquor bottles were seized in the manner stated above and as evidenced by Ext.P3 the seizure mahazar. It is pointed out by the learned public prosecutor that there is a detailed description of the seizure of the articles and also as to how the liquor bottles were sealed etc. In fact no Crl.R.P.No.1631/2002 : 7 : question was put by the defence in cross examination questioning the mode of sampling, sealing etc. Therefore, the contention that there was no proper sampling or sealing must fall to the ground. Though it was contended that there was slight delay in production of liquor bottles, that cannot be projected out of proportion because of the fact that the seizure was immediately reported to the court. What is required is the prompt reporting of the offence. Moreover, since all the liquor bottles were in sealed condition, sealed by the manufacturer company with the label declaration as mentioned above, the contention to the contrary advanced by the learned counsel for the petitioner cannot be sustained. Since the liquor bottles were intended to be sold only in Mahe (State of Pondicherry) and since such liquor bottles were seized while transporting in the jeep driven by the petitioner within the limits of Chittarikkal police station, it has to be presumed that it Crl.R.P.No.1631/2002 : 8 : was illegally transported in the jeep driven by A2, the petitioner herein. It was not a case of mere possession of the contraband items, but possession which being transported or in the course of transport. 8. The evidence would show that there were two cases of 60 bottles each of IMFL. Thus altogether 120 bottles were there. The inscription on those bottles were seen specifically referred to in the seizure mahazar. Two such bottles were sent to the Chemical Examiner after following the procedure prescribed. Those two sample bottles also contained the inscription imprinted on them. Those bottles were in sealed condition as mentioned in the chemical examiner's report -Ext.P7. Therefore, the contention that there was no proper sampling or forwarding of the samples to the chemical examiner is also bereft of any merit. Therefore, the delay of 8 days in producing the material objects before court also will not affect the case of the prosecution. Since the offence Crl.R.P.No.1631/2002 : 9 : charged is under Sec.55(a) of Abkari Act, in the facts and circumstances of the case, the presumption under Sec.64 of the Abkari Act is also available to the prosecution (See the Supreme Court decision in **Arjun v. State of Kerala** (AIR 2007 SC 2331). It is quite evident that it was illegally brought from Mahe (which is part of Pondicherry-Puducherry) to the State of Kerala and as such it clearly attracts the offence under Sec.55(a) of Abkari Act. Therefore, the conviction is only to be confirmed. 9. The learned counsel for the revision petitioner submits that leniency may be shown to the petitioner. He was sentenced to R.I for three years and to pay Rs.1 lakh as fine. The fine imposed is the statutory minimum. Considering all the aspects, I find that S.I for six months will be the adequate sentence. 10. In the result, this Criminal Revision Petition is disposed of as stated below: Crl.R.P.No.1631/2002 : 10 : The conviction is confirmed. While confirming the sentence imposed and the default sentence awarded by the courts below, the substantive sentence is reduced to S.I for six months. Sd/- ## **N.K.BALAKRISHNAN, JUDGE** das // True copy // PA to Judge