A.K. Vinod v. The State of Kerala and The Excise Inspector, Kasaragod

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 15TH DAY OF FEBRUARY 2016/26TH MAGHA, 1937** **CRL.A.NO. 1586 OF 2004 ( ) ---------------------------** **AGAINST THE JUDGMENT IN SC NO.890/2000 OF ADDITIONAL SESSIONS COURT (ADHOC-I), KASARAGOD DATED 31-08-2004** **---------------------------** **APPELLANT(S)/ACCUSED::** **----------------------** **A.K.VINOD, S/O A.K. RAGHAVAN, KELUGUDDE, AYYAPPA NAGAR, KUDLU.** **BY ADV. SRI.T.G.RAJENDRAN** **RESPONDENT(S)/COMPLAINANT & STATE::** **----------------------------------** **1. THE EXCISE INSPECTOR, KASARAGODE.** ## **2. STATE OF KERALA,** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. N. SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -------------------------------Crl. Appeal No.1586 of 2004 ---------------------------------Dated this the 15[th] day of February, 2016** ## **J U D G M E N T** This appeal is preferred against the conviction and sentence in S.C. No.890 of 2000 of the learned Additional Sessions Judge (Adhoc-I), Kasaragode under Sec.55(a) of the Abkari Act. The charge against the appellant is that on 06.10.1999 at about 6.15 p.m., the Excise Inspector, Kasaragod was conducting patrol duty, at that time, the appellant was found in possession of 10 litres of arrack in front of the gate of Municipal trenching ground, Kelugude, Kudlu village, Kasaragod taluk. The appellant was arrested and the contraband articles were seized after preparing the mahazar. Reaching at the Excise Range Office, he registered the crime and after completing investigation, the Excise Inspector laid charge before the Judicial First Class Magistrate Court, Kasaragod. From there, the case was committed to Sessions Court, Kasaragod. Subsequently, it is made over to Additional Sessions Judge (Adhoc-I), Kasaragod. Crl. Appeal No.1586 of 2004 2 2. During trial, prosecution examined five witnesses and marked Exts.P1 to P8 as documentary evidence. MO1 was admitted in evidence as material object. The incriminating circumstance brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. Appellant was also heard under Sec.232 of the Code of Criminal Procedure. The learned Additional Sessions Judge (Adhoc-I), Kasaragod convicted the accused, sentenced him to rigorous imprisonment for six months and fine of Rs.1,00,000/-(Rupees one lakh only) and in default of payment of fine, rigorous imprisonment for six months. Being aggrieved by that, he preferred this appeal. 3. Learned counsel appearing for the appellant contended that the sample was taken on 06.10.1999 and it was produced before the court on 07.10.1999. PW1 affixed his personal seal but in Ext.P5, the seal is not clear. If that be the position, there is no guarantee that the seized articles had properly reached before the court in a tamper proof condition. Crl. Appeal No.1586 of 2004 3 4. The learned Public Prosecutor strongly opposed the arguments and contended that there is no meaning in the above argument and the sample was properly produced before the court without unnecessary delay. Personal seal was affixed and it was mentioned in Ext.P1 seizure mahazar. Hence, there is no reason to doubt the contents in the chemical analysis report. 5. The occurrence was stated by PW1 Excise Circle Inspector, Kasaragod. The evidence of PW1 shows that on 06.10.1999, he was conducting patrol duty in Kudlu Village and on reaching near the Municipality trenching ground, the appellant was found carrying a plastic cannas. On seeing the excise party, the appellant became frightened. Upon suspicion, PW1 intercepted the appellant and inspected the cannas and detected 10 litres of arrack in it. The independent witnesses present there saw the seizure of arrack. The accused was arrested from the place of occurrence itself. He took 300 m.l. as sample and affixed his label and sealed the sample bottle at the place of occurrence. The balance arrack also ## Crl. Appeal No.1586 of 2004 4 was sealed at the place of occurrence and affixed a label. PW1, accused and the witnesses present there affixed their signatures in the label. For that he prepared Ext.P1 mahazar. The balance of arrack after taking the sample was marked as MO1 in the trial court. Reaching at the Excise Range Office, he registered the crime and Ext.P2 is the occurrence report. During cross examination, he admitted that O.R. No.15 of 1999 was recorded in the label affixed in MO1 at his office. There was no serious challenge with regard to it. Even though, PW1 was cross examined by the defence counsel, nothing was brought out in evidence to discredit that evidence. PW2 and PW3, the independent witnesses, did not support the prosecution case. They stated that they never saw the seizure of MO1 from the possession of the appellant. But PW3 admitted the signature in Ext.P1. PW4, the preventive officer also supported the evidence of PW1. He also gave similar version given by PW1. Analyzing the evidence of PW1 and PW4, it is seen that they are telling the direct evidence about the seizure made on ## Crl. Appeal No.1586 of 2004 5 06.10.1999. 7. The investigation was conducted by PW5. According to him, on 07.10.1999 at 10.00 a.m., PW1 produced the seized article and the accused before him. He verified Ext.P2 occurrence report and registered crime No.49 of 1999 of Kasaragod Excise Circle. The accused and the contraband articles were produced before Court on 07.10.1999. Sample was sent over to the chemical examination lab through the court and Ext.P4 is the property list. Ext.P5 is the requisition. Ext.P6 is the chemical examination result, in which it is stated that the sample contained 32.28% of ethyal alcohol by volume. He questioned the witnesses and completed the investigation. Even though, the official witnesses were cross examined by the learned defence counsel, nothing has been brought out in evidence to discredit the oral evidence. The trial court considered the legal aspect and convicted the appellant. 8. Analysing the oral evidence of PW1, PW4 and PW5, no reasons are found to discredit their evidence. ## Crl. Appeal No.1586 of 2004 6 They are the excise officers from the excise department and no ground to reject their evidence on the ground that there is no independent evidence. Therefore, the appellant has committed an offence punishable under Sec.8(1) of the Kerala Abkari Act. 9. This Court in **Gopan V. State of Kerala [2007 (3) KLT 443]** held that “mere possession of arrack in any form without any authority would only attract the offence under Sec.8 of the Kerala Abkari Act”. Here, the appellant was in possession of 10 litres of arrack. Therefore, the conviction under Sec.55(a) of the Kerala Abkari Act is set aside. No previous criminal antecedents were reported against the appellant. 10. In the result, the conviction under Sec.55(a) of the Kerala Abkari Act is set aside and the appellant is convicted under Sec.8(1) and (2) of the Kerala Abkari Act and sentenced to imprisonment for three months and fine of Rs.1,00,000/- (Rupees one lakh) and in default of payment of fine, imprisonment for one month relied on the decision reported in **Sasikumar v.** Crl. Appeal No.1586 of 2004 7 **State of Kerala [ 2012 (4) KLT 867].** The appellant is directed to surrender before the trial court to undergo the modified sentence. The appeal is disposed of as above. Sd/- **P.D. RAJAN JUDGE** / True Copy / P.A. To Judge NS/16/02/2016