Ayyappan s/o Narayanan Cholakkal Vellayoor Amapoyil v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN MONDAY, THE 30TH DAY OF SEPTEMBER 2013/8TH ASWINA, 1935 CRL.A.No. 731 of 2005 ---------------------- [AGAINST THE JUDGMENT DATED 21.3.2005 IN SC 322/2002 of THE COURT OF ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT NO.1 (ADHOC), MANJERI] APPELLANT(S)/ACCUSED: --------------------- AYYAPPAN S/O. NARAYANAN, CHOLAKKAL VELLAYOOR AMAPOYIL, NILAMBUR MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S)/STATE: -------------------- THE STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR, KALIKAVU EXCISE RANGE THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY PUBLIC PROSECUTOR SRI.K.M.ABDUL KHADIR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **----------------------------------------** ## **CRLA.No. 731 of 2005** **----------------------------------------** Dated this the 30[th] day of September, 2013 ## **J U D G M E N T** The sole accused in S.C.No.322 of 2002 on the file of the court of Additional Sessions Judge (Fast Track Court No.I), Majeri is the appellant as he is aggrieved by the judgment dated 21.3.2005 in the above sessions case by which he is convicted and sentenced for the offence under Sections 55(a) and (g) of the Abkari Act (for short as 'the Act' only). 2. The prosecution case is that at about 6 p.m. on 19.10.1997, the appellant/accused was found transporting two litres of illicit arrack in a can of five litres capacity and ten litres of wash concealed by the accused, which is also seized as shown by the accused and thus, the accused has committed the offences punishable under Sections 55(a) and (g) of the Act. On the above allegation, O.R. No.13/1997 was registered in the Excise Range Office, Kalikavu and Crl.A.No. 731 Of 2005 **==> picture [21 x 9] intentionally omitted <==** on completing the investigation, the charge was laid. Eventually, based upon which, S.C.No.322 of 2002 was instituted and when the accused appeared, a formal charge for the offences punishable under Section 55(a) and (g) of the Act was framed, which when read over and explained to the accused, he denied the same and pleaded not guilty and therefore, the trial continued further, during which by examining Pws.1 to 5 and producing Exts.P1 to P7 and Mos.1 and 2, the prosecution adduced its evidence. Finally, the trial court has found that the accused was keeping in possession of arrack as well as wash and agreeing with the prosecution, it was held that the accused was dealing with contraband articles with full knowledge that he was violating the law and on such finding, the accused was held guilty for the offence under Sections 55(a) and (g) of the Act and accordingly, he is convicted thereunder. On such conviction, the appellant/accused is sentenced to undergo rigorous imprisonment for three years for the offence under Section 55(a) and to pay a fine of rupees one lakh and Crl.A.No. 731 Of 2005 :-3-: in default to pay fine, he is directed to undergo simple imprisonment for one year and similarly, he is also sentenced to undergo rigorous imprisonment for three years and to pay fine of rupees one lakh under Section 55(g) of the Act and in default of paying the fine, he is directed to undergo simple imprisonment for one year. It is ordered that the substantial sentence shall run concurrently and set off is allowed. Challenging the above finding, the order of conviction and sentence, the appellant herein/the accused therein preferred the present appeal. 3. I have heard Sri.Babu.S.Nair, the learned counsel for the appellant and the learned Public Prosecutor. 4. As I indicated earlier, Pws. 1 to 5 were examined by the prosecution, but the independent witnesses viz., Pws.3 and 4 turned hostile towards the prosecution. Among the remaining three witnesses, PW5 was examined to prove the investigation conducted by CW11, who is no more and during his examination, he has identified Crl.A.No. 731 Of 2005 **==> picture [21 x 9] intentionally omitted <==** Ext.P6 chemical analysis report and Ext.P7 charge filed by CW11. To prove the occurrence, as Pws.3 and 4, the independent witnesses turned hostile, the prosecution has very much relied and depended upon the evidence of Pws.1 and 2, the Excise Officials who involved in the detection of the crime. PW1 is the then Preventive Officer and PW2 is the then Excise Guard, who were attached to Kalikavu Excise Range. When PW1 was examined, Ext.P1 arrest memo, Ext.P2 mahazar, Ext.P3 occurrence report, Ext.P4 property list and Ext.P5 forwarding note were identified and marked. Mos.1 and 2 were also identified and marked. In the deposition of Pws.1 and 2, they fully supported the prosecution case. According to them, while they were on patrol duty in and around Amapoyil and other area on 17.10.1997 and while they were proceeding towards Ummathinkadavu, they found the accused carrying cannas and on seeing the Excise Party, he was found perplexed and he was intercepted and restrained and on examination of the contents of the cannas, by tasting and smelling, Crl.A.No. 731 Of 2005 **==> picture [21 x 9] intentionally omitted <==** they realised the same as illicit arrack. According to them, by that time, the local people were gathered and in the presence of two independent witnesses, the can containing illicit arrack was seized and the accused was arrested and on questioning, he disclosed that he had concealed wash prepared for distillation in a nearby bush and according to Pws.1 and 2, as led by the accused and as pointed out by him, PW1 seized ten litres of wash. Thereafter, according to Pws.1 and 2, the samples were drawn from the cans containing illicit arrack and wash and thereafter, the remaining wash was destroyed at the spot itself. According to Pws.1 and 2, on completing the proceedings at the spot, the contraband article and the samples and documents as well as the accused were brought to the Excise Range Office and were handed over to CW11, who in turn produced before the court on the next day. These are the evidence and materials referred to by the learned Judge of the trial court in support of her finding and for convicting the appellant. Crl.A.No. 731 Of 2005 :-6-: 5. The learned counsel for the appellant vehemently submitted that there are five years delay in questioning Pws.1 and 2 by the investigating officer which will go against the prosecution. It is also contended by the learned counsel that there is contradiction in the evidence of Pws.1 and 2 about the exact place at which the accused was found carrying MO2 can containing the illicit arrack. So, according to the learned counsel, the above aspects were not properly considered by th learned Judge of the trial court and therefore, the appellant/accused is entitled to get an acquittal. 7. On the other hand, the learned Public Prosecutor strenuously submitted that regarding the evidence of Pws.1 and 2 official witnesses, who involved in the detection of the crime, there is no contradiction or omission so as to discredit their version. According to the learned Public Prosecutor, in substance, the evidence of Pws.1 and 2 are fully supported by the contemporaneous document Ext.P1 to prove the involvement of the appellant/accused in the commission of Crl.A.No. 731 Of 2005 **==> picture [21 x 9] intentionally omitted <==** the offence and therefore, the trial court is fully justified in convicting the appellant/accused and no interference is warranted. 8. I have carefully considered the arguments advanced by the counsel for the appellant as well as the learned Public Prosecutor and I have gone through the deposition of the prosecution witnesses as well as the evidence and materials on record. 9. Having regard to the above facts and circumstances and the evidence and the materials on record and in the light of the arguments advanced, the question to be considered is whether the trial court is justified in its finding and in convicting the appellant for the offence under Sections 55(a) and (g) of the Act. I have already referred to the evidence on record which is fully relied on by the learned Judge of the trial court. It is true, Pws.3 and 4, the independent witnesses, who are examined to prove the seizure of the contraband article and the arrest of the accused, turned hostile. So, the only evidence of the prosecution is the depositions of Pws.1 and 2 to prove the above facts. ## Crl.A.No. 731 Of 2005 :-8-: Therefore, the question is how far the evidence of Pws.1 and 2 is believable and reliable. In the present case, as rightly pointed out by the learned counsel for the appellant, there are some discrepancies or minor contradictions in the evidence between Pws.1 and 2 about the exact place of occurrence. As rightly found by the learned Judge of the trial court, it is immaterial whether the seizure was effected on the ridge or a lane since the factum of seizure of arrack from the possession of the accused is proved on the basis of the available evidence on record. In this juncture, it is relevant to note that the alleged incident has taken place on 17.10.1997 and all witnesses of prosecution were examined on 18.2.2005, after eight years from the date of occurrence. So the minor contradiction and variations in their evidence is quite natural and normal and therefore, the prosecution cannot be held as incorrect or unproved, particularly in view of the decision reported in **Rizan & another** v. **State of Chattisgarh** [(2003) 2 SCC 661]. As I indicated earlier, the evidence of PWs.1 and Crl.A.No. 731 Of 2005 **==> picture [21 x 9] intentionally omitted <==** 2 on the main aspect i.e., about the seizure of illicit arrack from the possession of the accused, who was found carrying MO2 can, is proved. It is also relevant to note that the evidence of Pws.1 and 2 is further corroborated by Ext.P2 mahazar which is a contemporary document prepared by PW1 then and there. So, according to me, the learned Judge of the trial court is fully correct in her finding on the guilty of the appellant/accused for the offence under Section 55(a) relying upon the evidence of Pws.1 and 2. 10. In this juncture, it is relevant to note that besides the allegation that the appellant/accused has committed the offence under Section 55(a), the prosecution has also got a further case against the appellant that he has also committed the offence punishable under Section 55(g) of the Act and the allegation is that while the accused was arrested and questioned on his seeing with illicit arrack in MO2 can, he had disclosed about the concealment of a plastic can having the capacity of 50 litres in which wash was kept concealed. Crl.A.No. 731 Of 2005 **==> picture [27 x 9] intentionally omitted <==** According to the prosecution, on such revelation, PW1 was led and pointed out by the accused, 400 metres away from the place on which the arrack was detected and MO1 can was detected in which a liquid contained which, according to PW1, realised the same as wash by smelling and tasting. 11. It is the further case of PW1 that he had drawn sample from MO1 and MO2 from the place at which initially the accused was found carrying MO2 can. In this juncture, it is relevant to note that about the seizure of MO1 can and wash, there is no evidence other than the version of PW1, the detecting officer. Even though PW1 claimed that along with him, PW2 and other Excise Guards and local people were present, when the seizure was effected, with respect to the arrack, none of these persons accompanied PW1 to the place from where MO1 can was detected. No service of any other independent witness from that locality was obtained. There is also no evidence to the effect that MO1 can, which is said to have detected 400 metres Crl.A.No. 731 Of 2005 **==> picture [27 x 9] intentionally omitted <==** away from the place at which MO2 can was seized, is brought to that place and no evidence as to who carried that MO1 can to the place at which Ext.P2 seizure mahazar was prepared. There is no evidence as to the owner of the property from where MO1 can was concealed and detected. No persons residing in and around the place at which MO1 can was detected are cited and examined as witnesses. It is pertinent to note that besides the above defect, no other apparatus or implement is detected or seized by PW1, to show that the accused was involved in the illicit distillation or manufacturing of arrack. In the absence of any corroborating evidence to support the evidence of PW1 to prove the offence under Section 55(g) against the appellant/accused, according to me, the trial court is not justified in convicting the appellant for the said offence and imposing the sentence against him. 12. In the light of the above discussion and evidence and materials on record, the inevitable conclusion is that the prosecution has succeeded only in proving the offence under Section 55(a) against Crl.A.No. 731 Of 2005 :-12-: the appellant, but they have miserably failed in establishing the guilt of the appellant/accused for the offence under Section 55(g) of the Abkari Act beyond reasonable doubt. Therefore, extending the benefit of doubt, the conviction recorded by the trial court against the appellant for the offence under Section 55(g) of the Act is set aside, but confirmed the conviction of the appellant for the offence under Section 55(a) of the Abkari Act. 13. As this Court has confirmed the conviction of the appellant for the offence under Section 55(a), the learned counsel for the appellant submitted that a lenient view may be taken in the matter of sentence, since, according to the counsel, the appellant is the only breadwinner of his family consisting of four children. The above submission, according to me, requires positive consideration. At the time of the alleged offence, the appellant/accused was only at the age of 33 and the prosecution has no case that he is a habitual offender and as per the finding of this Court, what proved against him is that he Crl.A.No. 731 Of 2005 **==> picture [27 x 9] intentionally omitted <==** was found in possession of two litres of illicit arrack in his possession, who is a coolie. Considering the above facts and mitigating circumstances, according to me, the substantial sentence can be modified and the default sentence can also be reduced. According to me, the substantial sentence can be reduced to six months rigorous imprisonment and the default sentence can be reduced to 15 days simple imprisonment when confirming the sentence of fine. .In the result, the appellant, in modification of the sentence imposed by the court below, is sentenced to undergo rigorous imprisonment for six months and to pay a fine of `1 lakh and in default, he is sentenced to undergo simple imprisonment for 15 days for the offence under Section 55(a). Set off is allowed under Section 428 of the Cr.P.C. Subject to the above modification with respect to the sentence, the appeal is disposed of confirming the conviction of the appellant for the offence under Section 55(a), but acquitting him for the offence under Section 55(g). The appellant is directed to appear Crl.A.No. 731 Of 2005 :-14-: before the trial court on **30[th] October,2013** to receive the modified sentence and if there is any failure on his part to appear before the trial court as directed above, the trial court is free to take coercive steps to secure the presence of the appellant and to execute the sentence. Accordingly, this Criminal Appeal is disposed of as above. **V.K.MOHANAN, Judge** MBS/ Crl.A.No. 731 Of 2005 :-15-: