Aravindakshan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID** **FRIDAY, THE 28TH DAY OF JUNE 2013/7TH ASHADHA, 193** **CRL.A.No. 256 of 2004 (B)** **-------------------------AGAINST THE JUDGMENT IN SC NO.160/2000 DATED 06.02.2004 OF THE ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC) II, KOLLAM** **APPELLANT(S)/ACCUSED: ---------------------** **ARAVINDAKSHAN, MALAYAPURAM KOCHAYIL VEEDU, KIDAPURAM MURI MANTROTHURUTHU VILLAGE, KOLLAM.** **BY ADVS.SRI.B.SURESH KUMAR SMT.T.V.NEEMA** **RESPONDENT(S)/STATE: --------------------** **THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE SUB INSPECTOR OF POLICE, EAST KALLADA POLICE STATION, KOLLAM.** **BY PUBLIC PROSECUTOR SMT.SAREENA GEORGE** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BKA** ## **HARUN-UL-RASHID, J.** **-------------------------------------------------Crl. A. No. 256 of 2004 -------------------------------------------------Dated this the 28[th] day of June, 2013** ## **J U D G M E N T** The accused in SC No.160/2000 of the Additional District and Sessions Court (Adhoc) II, Kollam, is the appellant. The appeal is directed against the judgment dated 06.02.2004. The accused is found guilty of the offences punishable under Section 55 (a), (b) and (g) of the Kerala Abkari Act and he is convicted for the said offences. The accused is sentenced to undergo rigorous imprisonment for four years and to pay a fine of 1 lakh₹ for offence under Section 55 (b) of the Abkari Act. In default of payment of fine, he has to undergo simple imprisonment for one year. No separate sentence is awarded for offences under Section 55 (a) & (g) of the Abkari Act. Parties are hereinafter referred to as they are arrayed in the sessions case. 2. The accused is charged for the offence of Crl. A. No. 256 of 2004 ..2.. possessing materials and utensils for manufacturing liquor and for possessing liquor. The prosecution case is that the accused was arrested red-handed from the place of occurrence and simultaneous recovery was effected. On getting reliable information on 23.07.1998 at 11 am that somebody is manufacturing arrack on the bank of the river at Kadappuram, PW4, the Sub Inspector of Police, along with patrol party proceeded to the said place and when they reached the place of occurrence, they could notice that utensils and implements required for manufacturing arrack was arranged in such a manner one over the other and arrack is being manufactured. The person, who was engaged in the manufacturing process when tried to escape seeing the Police, was intercepted on satisfying that the accused was manufacturing arrack and manufactured arrack was being collected in a cannas. PW4, in the presence of two independent witnesses, examined the materials and utensils used as well as the manufactured liquid. PW4 Crl. A. No. 256 of 2004 **==> picture [20 x 8] intentionally omitted <==** was satisfied that the manufactured liquid is nothing, but arrack. The accused was arrested at about 12 noon and the mahazar was prepared in the presence of witnesses. The materials found in the aluminum pot was found to be wash for manufacturing arrack. Samples were taken from the wash as well as liquid from the cannas and it was sealed in the presence of witnesses. The accused and material objects were produced in court and final report was filed. 3. Prosecution examined PWs 1 to 4 and marked Ext.P1 to P4 and MOs 1 to 6. On the defence side, DW1, who is an attester to Ext.P1 scene mahazar, was examined. According to PW4, PW1 put his signature when the accused was arrested at 12 noon. PW1 admitted his signature in Ext.P1 scene mahazar, but, deposed that he put his signature at midnight. The witness was declared hostile. PWs 2 & 3 are Police Constables, who accompanied PW4, the Sub Inspector of Police. PWs 2 & 3 deposed that on 23.07.1998, while Crl. A. No. 256 of 2004 **==> picture [20 x 8] intentionally omitted <==** they were on patrol duty along with PW4 Sub Inspector, information was received about the manufacture of illicit arrack by somebody on the river bank. When they reached the scene of occurrence, they noted that a man was engaged in manufacturing arrack. They noticed that some liquid is seen collected through a tube taken out from the middle vessel and the same is collected in a ten litre cannas. On satisfying that the accused was engaged in manufacturing arrack, sample was taken from six litres of arrack found in the cannas in the presence of witnesses and it was sealed. The police party found twenty five litres of wash in the aluminum pot. Material objects were taken into custody after preparing mahazar. Both the witnesses identified MOs 1 to 6 and the accused. 4. PW4, who is the detecting officer as well as the investigating officer, who laid the final report, had also narrated the incident in the same manner as narrated by PWs 2 & 3. PW4 had arrested the accused and the material objects were produced in the court. The Crl. A. No. 256 of 2004 **==> picture [20 x 8] intentionally omitted <==** witnesses were questioned and requisition was filed for sending the sample for analysis. Final report was filed after completing the investigation. 5. The prosecution case is that the accused is arrested red-handed from the place of occurrence and simultaneous recovery was effected. But, on the defence side, it is contended that he is arrested in the mid-night from his house. DW1, who is the other attesting witness to Ext.P1 scene mahazar, has given up by the prosecution on the ground that he was not available. The prosecution examined PW1, who is also an attesting witness to Ext.P1. DW1 has identified the accused. He denied of having put his signature in any of the documents prepared by the East Kallada Police. At the same time, he identified his signature in Ext.P1 scene mahazar. According to him, he put his signature at 7 pm. But, he cannot remember the date. The prosecution pointed out that DW1 cunningly evaded the service of process by the Police Constables and he appeared to adduce evidence at the service of Crl. A. No. 256 of 2004 ..6.. accused in his favour. The witness was not in a position to deny the date suggested by the prosecution as 23.07.1998 as the arrest day of the accused. The witness pleaded ignorance. The court below appreciated the testimonies of PW1 and DW1, and found that the witnesses are not actually saying the truth relating to the time of arrest of the accused and the place of arrest. The mere fact that PW1 turned against the prosecution and did not speak about the occurrence, does not mean that the occurrence had not taken place as alleged by the prosecution or that they were not present at the time of the occurrence. Instances are not rare where independent witnesses, for reasons of their own, go back on the contents of the mahazar which they had attested. It cannot be assumed that in such a case, the requirements of law contemplated under Section 100 of the Code of Criminal Procedure have not been probed. The court has to scrutinize the evidence of the Excise Officers to satisfy itself whether the procedural Crl. A. No. 256 of 2004 **==> picture [20 x 8] intentionally omitted <==** safeguards have been observed. If so satisfied, the evidence of official witnesses regarding occurrence and seizure can be accepted. The learned Judge followed the decision reported in **Karamjit Singh vs. State of Delhi** (AIR 2003 SC 1311), wherein it was held that there is no principle of law that without corroboration by independent witnesses, their testimony cannot be relied upon. The mahazar witnesses, namely, PW1 & DW1, did not deny their signature in Ext.P1 mahazar. As regards the evidence of PW1, he only states that he put his signature not at 12 noon, but, during night. He has no case that he has not attested Ext.P1 mahazar. DW1, who turned hostile to the prosecution, also admitted his signature in Ext.P1 mahazar. Therefore, there is every reason to believe that the witnesses are not actually saying the truth relating to the time of arrest of the accused and the place of arrest. 6. The court below relied on the testimonies of PWs 2 to 4 to prove the alleged occurrence. PWs 2 & 3 Crl. A. No. 256 of 2004 **==> picture [20 x 8] intentionally omitted <==** testified that they went along with PW4 in connection with the investigation of crime no.120/1998 of that Police Station. PWs 2 & 3 corroborated the evidence tendered by PW4 regarding the occurrence and detection. The presence of the police party under PW4 is established by the prosecution. PWs 2 & 3 were cross-examined at length regarding the detection, but, nothing was brought to discredit their version as to the place of occurrence and the possibility of the police party reaching on the northern bank of the river. No reasons are made out by the defence side to disbelieve the testimonies of PWs 2 to 4. All of them, in categorical terms, deposed that they saw that the accused was engaged in manufacturing liquor in MOs 1 to 4. All of them also deposed that the accused was found in the place of occurrence and he was arrested red-handed. The trial court, taking into consideration the materials on record including the oral evidence tendered by the officials, held that the prosecution has proved the detection of the occurrence as Crl. A. No. 256 of 2004 ..9.. well as the manufacturing process by the materials and utensils for manufacturing arrack by the accused. The evidence also would point out that the samples were taken from the MO6 cannas and wash was collected in two bottles and both the bottles were sealed in the presence of witnesses and pasted with paper slip signed by PWs 1, 2 & 4. On the defence side, it is contended that the material objects were not produced before the court within a reasonable time. It is stated that all the material objects are produced after 13 days. According to the learned counsel for the accused, regarding the delay occurred in producing the seized articles, there is no evidence to show that the residue and the samples were kept in the safe custody by the Abkari Officer till those items were produced in court, and thus, contended that chance of tampering cannot be ruled out. PW4 stated that the accused was produced on 23.07.1998 at 4.30 pm. He also stated that the MOs produced in court was returned due to insufficiency of space in the thondi Crl. A. No. 256 of 2004 **==> picture [26 x 8] intentionally omitted <==** room and thereafter, he kept the same in his safe custody and later it was produced in court. I have gone through the testimony of PW4. Not even a single question is seen as has been asked about the delay in producing the MOs before the court. As PW4 testified before the court the reasons for the belated production of the MOs, he was justified in saying that the MOs including the residue were received intact by the court and seen that it was properly sealed. He further deposed that the MOs produced along with the accused were not received by the court because, during those days, the thondi room was packed with plenty of thondi items and sufficient space was not there for keeping the MOs. The learned Prosecutor pointed out that as per Section 53 of the Abkari Act, the material objects need be produced as and when ordered by the court and the Abkari Officer has every right to keep the seized articles in his safe custody. 7. Another argument advanced by the learned counsel for the accused is that he is implicated in this Crl. A. No. 256 of 2004 ..11.. case due to political rivalry. Apart from the statement by the accused, there is no evidence to show that he is implicated in the case due to political rivalry. The learned Magistrate, considering the evidence as a whole including official evidence of PWs 2 to 4, found that the detection, taking and preservation of the samples and seized articles, are proved. I have examined the materials on record and the evidence tendered by both sides. I fully agree with the observations and findings arrived at by the court below. There is no factual or legal infirmity in passing the impugned order. I find that no interference is necessary in the facts and circumstances. 8. The appellant is the sole bread winner of the family. He was maintaining his family including his wife, children and mother. They are depending upon the appellant. He is not a habitual offender. This is the first offence registered against the appellant. Taking a lenient view, a moderate approach in sentencing the accused would meet the ends of justice. Hence, I am inclined to Crl. A. No. 256 of 2004 **==> picture [26 x 8] intentionally omitted <==** modify the sentence. The appeal is partly allowed. The order of conviction passed by the court below is confirmed. The sentence awarded is modified as follows: The accused is sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of ₹ 1,00,000/- (Rupees one lakh only) under Section 55(i) of the Kerala Abkari Act. In default of payment of fine, he has to undergo simple imprisonment for a period of one month. All other findings recorded by the court below shall stand. Set off is allowed under Section 428 of Cr.P.C. The court shall issue revised committal warrant. Sd/- **HARUN-UL-RASHID, JUDGE** bka/- //True copy// PA to Judge