Asokan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 02ND DAY OF JUNE 2020 / 12TH JYAISHTA, 1942** **Crl.Rev.Pet.No.496 OF 2016** **AGAINST THE JUDGMENT IN CRA 111/2014 DATED 16-01-2016 OF SESSIONS COURT, KOZHIKODE DIVISION** **AGAINST THE JUDGMENT IN SC 1035/2012 DATED 04-02-2014 OF ASSISTANT SESSIONS JUDGE, KOYILANDY** ## **REVISION PETITIONER/2ND ACCUSED:** **ASOKAN AGED 45 YEARS S/O.VELUTHAN, NADCHALIL COLONY, ATHOLI AMSOM, KODASSERY DESOM, KOYILANDY.** ## **BY ADV. SRI.RAJU SEBASTIAN VADAKKEKKARA** ## **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** ## **SRI C K PRASAD-PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27.05.2020, THE COURT ON 02.06.2020 PASSED THE FOLLOWING:** Crl.R.P.No.496/2016 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.496 of 2016 -----------------------------------------Dated this the 2[nd] day of June, 2020 ## **O R D E R** The revision petitioner is the second accused in the case S.C No.1035/2012 on the file of the Court of the Assistant Sessions Judge, Koyilandy. 2. Concurrent verdicts of guilty and conviction recorded against the petitioner by the courts below under Section 8(1) read with 8(2) of the Abkari Act, 1077 are assailed in this revision petition. 3. The prosecution case is as follows: On 25.09.2009, the Excise Inspector (PW1) of Balussery Excise Range was conducting patrol duty with excise party in the department vehicle. At about 15:15 hours, when they reached the public road in front of the house of one Aboobacker at the place Modakkallur in Koyilandy Taluk, they saw a motor cycle coming from the opposite direction. The first accused was the rider and the second Crl.R.P.No.496/2016 3 accused was the pillion rider of the motor cycle. On seeing the excise party, the speed of the motor cycle was slowed down and the second accused tried to get down with the plastic cover which was placed by him on his lap. The excise party then stopped their jeep and got down from the vehicle. PW1 got the motor cycle stopped by giving signal. He inspected the plastic cover held by the second accused who had got down from the motor cycle. There was a can of ten litres capacity in the plastic cover. The can contained five litres of liquid. By the taste and smell of the liquid, PW1 found that it was arrack. He arrested both accused at the spot. He took sample of the liquid in a bottle and sealed the sample bottle and the can containing the residue and also affixed label bearing the signature of himself and the witnesses and the accused on the can and the sample bottle. PW1 seized the properties as per Ext.P2 mahazar. On reaching the excise range office with the accused and the records and the properties, PW1 registered case against the accused as Ext.P3 crime and occurrence report. 4. The trial court framed charge against both accused under Crl.R.P.No.496/2016 4 Section 8(1) read with 8(2) of the Abkari Act. Both accused pleaded not guilty and claimed to be tried. 5. The prosecution examined PW1 to PW6 and marked Exts.P1 to P9 documents and material objects MO1 and MO2. No evidence was adduced by the accused. 6. The trial court found both accused guilty of the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and convicted them thereunder. The trial court sentenced them to undergo rigorous imprisonment for a period of three years each also to pay a fine of Rs.1,00,000/- each and in default of payment of fine, to undergo imprisonment (whether rigorous or simple, not specified) for a period of one year each. 7. The two accused filed separate appeals before the Court of Session, Kozhikode challenging the order of conviction and sentence passed against them by the trial court. The appellate court confirmed the conviction as well as the sentence against both accused and dismissed the appeals. 8. Aggrieved by the concurrent verdicts of guilty, conviction and sentence made against him by the courts below, the second Crl.R.P.No.496/2016 5 accused has filed this revision petition. 9. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the records. 10. PW1 is the Excise Officer who detected the offence. PW2 is the Assistant Excise Inspector who was in the excise party led by PW1. They have given evidence regarding the occurrence in detail. 11. This is a rare case in which the independent witness, who was examined as PW4, has supported the prosecution case. He has given evidence regarding the seizure of the can containing arrack by the excise party. 12. PW1 has sworn to the entire incident in necessary details. His evidence, with regard to the seizure of the can containing the liquid from the possession of the accused, is corroborated by the evidence of PW2 and PW4. The recitals in Ext.P2 mahazar, the contemporaneous document prepared by PW1 at the spot of the occurrence, also corroborate his testimony regarding the occurrence. There is no striking improbability or material contradiction or discrepancy in the evidence of PW1, Crl.R.P.No.496/2016 6 PW2 and PW4 regarding the seizure of MO2 can containing liquid from the possession of the petitioner. 13. There is no whisper of an allegation that PW1 and PW2 or any other excise officer had any motive to falsely implicate the petitioner in a case of this nature. There is nothing to show that the excise officers have falsely implicated the petitioner in the case with a view to settle any personal score with him. No semblance of even a suggestion was made to PW1 and PW2 in the cross examination to indicate even remotely that they had any animosity against the petitioner. 14. The courts below have concurrently found that the evidence of PW1, PW2 and PW4 regarding the occurrence is reliable and trustworthy. By exercising the correctional jurisdiction in revision, I find no sufficient ground to interfere with the concurrent findings made by the courts below that MO2 can containing liquid was seized from the possession of the petitioner. 15. Ext.P8 is the chemical analysis report in respect of the sample of liquid which was sent to the laboratory for Crl.R.P.No.496/2016 7 examination. It shows that ethyl alcohol was detected in the sample. 16. This is a case in which there is evidence to find that the very same sample, which was drawn by PW1 at the spot of the occurrence from the liquid contained in the can held by the petitioner, had reached the chemical examiner for analysis. The link evidence is complete and unbroken in this case. 17. There is a specific recital in Ext.P2 mahazar that the bottle in which the sample was taken and the can containing the residue of liquid were sealed and that label bearing the signature of PW1 and the witnesses and the accused was affixed on the sample bottle and the can. PW1 and PW2 have given evidence also to that effect. The specimen impression of the seal is seen affixed on the mahazar. 18. Ext.P3 is the crime and occurrence report prepared by PW1 on the date of occurrence itself. The description of the sample and the can given in Ext.P3 report shows that there was seal and label on them. Ext.P4 is the property list prepared by PW1 for producing the material objects before the court. It shows Crl.R.P.No.496/2016 8 that the sample and the can containing the residue were produced before the court on 25.09.2009, that is, the date of occurrence itself. The description of the sample bottle and the can given in Ext.P4 property list also shows that there was seal and label on them at the time of producing them in the court. Ext.P5 is the copy of the forwarding note prepared by PW1 for sending the sample for chemical examination. It shows that the sample sent for analysis had seal and label on the bottle. The specimen of the seal used for sealing the sample is affixed on the forwarding note. It is stated in Ext.P8 chemical examination report that the seal on the sample was intact and it tallied with the sample seal provided. In these circumstances, there can be no doubt with regard to the fact that the very same sample of liquid which was drawn at the spot of the occurrence had reached the chemical examiner for analysis without any tampering and that Ext.P8 chemical examination report relates to that sample itself. 19. Learned counsel for the petitioner contended that, when PW1 and PW2 gave evidence before the court, there was no label Crl.R.P.No.496/2016 9 on MO2 can and therefore, identification of the can by them as the very same can seized from the possession of the petitioner, cannot be accepted as reliable and trustworthy. 20. I find no merit in the aforesaid contention. In **Madhavan v. State : 2009 (4) KHC 91** , this Court had occasion to observe as follows: _“It is true that except on MO2 aluminum pot having a capacity of 10 litres, the other MOs before Court did not have labels at the time of trial. It should not be forgotten that even though the detection of the offence was on 19/03/1999, the trial of the case was in February, 2003. Until then, the properties other than the samples were entrusted to the custody of the Station House Officer. Hence the absence of labels on the properties when they were produced again before the Court, does not falsify the credible testimony of PWs 1 and 4. Labels had been affixed on all the MOs from the scene of detection itself. The procedure which was followed was that after production of the properties before the JFCM, all the properties except the samples were returned to the charging officer for being retained in the Police Station till the date of trial. Large quantities of liquor produced before Courts in the various abkari cases, if stored in Court premises, may pose the danger of fire_ Crl.R.P.No.496/2016 10 _hazard. That apart, there is also dearth of space in our Courts to store huge quantities of liquor. Hence, it is quite possible that the labels on the rest of the MOs were either lost in transit or got effaced during their storage in the Police Station. But that does not render the prosecution case suspect to any extent”._ 21. In the instant case, there was no label on MO2 can when the witnesses gave evidence before the court. But, identification of MO2 can by PW1 and PW2 in the court as the can containing arrack which was seized from the possession of the petitioner cannot be doubted for that reason. The personal seal affixed by PW1 on MO2 can at the time of the occurrence was intact when the witnesses gave evidence. 22. The investigating officer has not prepared any scene mahazar in this case. No question was put to PW6 Excise Inspector regarding the reason for non-preparation of scene mahazar. Therefore, the contention of the learned counsel in that regard does not merit acceptance. The decision in **Krishnan v. State : 2015 (1) KHC 822** , which is cited by the learned counsel for the petitioner in this regard, has no application to the facts of the present case. Non-preparation of scene mahazar was Crl.R.P.No.496/2016 11 not the sole ground of acquittal of the accused in that case. It was a case in which the specimen of the seal used by the detecting officer was not affixed even on the seizure mahazar or the forwarding note. 23. Learned counsel for the petitioner contended that there was undue delay in conducting the investigation of the case and filing final report and it is fatal to the prosecution case. Learned counsel has again placed reliance upon **Krishnan** (supra) in this regard. 24. In the instant case, the occurrence was on 25.09.2009. Final report was filed in the court only on 02.07.2012. But, no question was put to PW6 in the cross examination regarding the reason for the delay in completing the investigation of the case. Moreover, the petitioner has not shown that any prejudice has been caused to him due to the delay in completing the investigation of the case. Where the investigation is practically over immediately after the occurrence, the delay in recording statements of the witnesses, whose particulars and role in the incident are evidenced by the document prepared at the place of Crl.R.P.No.496/2016 12 occurrence, is not material. Delay is not a valid ground to acquit the accused if it has not caused prejudice to him (See **Santhosh** ## **v. State of Kerala : 2017 (5) KHC 107** ). 25. The discussion above leads to the conclusion that the verdicts of guilty and conviction against the petitioner by the courts below do not warrant any interference in revision. 26. Learned counsel for the petitioner contended that the sentence imposed on the petitioner is harsh and excessive. I find force in this contention. 27. The petitioner now faces a substantive sentence of rigorous imprisonment for a period of three years and a default sentence of imprisonment for a period of one year. The quantity of arrack found in the possession of the petitioner was only five litres. There is no material to show that he has got criminal antecedents. In such circumstances, I am satisfied that leniency can be shown on the question of substantive sentence of imprisonment imposed on the petitioner. There is a statutory minimum fine prescribed and appropriate modification of the default sentence can also be made. Crl.R.P.No.496/2016 13 28. In the result, the revision petition is allowed in part and it is ordered as follows: (1) Conviction of the petitioner for the offence under Section 8(1) read with 8(2) of the Abkari Act is confirmed. (2) The sentence imposed on the petitioner by the courts below is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo simple imprisonment for a period of three months. The sentence of fine of Rs.1,00,000/- (Rupees one lakh only) imposed on the petitioner by the courts below is confirmed but the default sentence is reduced to simple imprisonment for a period of fifteen days. (3) The petitioner is entitled to get the benefit of set off under Section 428 Cr.P.C against the substantive sentence of imprisonment imposed on him. ## (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** **jsr/01/06/2020** **PS to Judge** **True Copy**