## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR. JUSTICE P.D.RAJAN**
**TUESDAY, THE 8TH DAY OF MARCH 2016/18TH PHALGUNA, 1937**
**CRL.A.NO. 1351 OF 2005 ( ) ---------------------------**
**AGAINST THE JUDGMENT IN SC NO.504/2003 OF ADDITIONAL SESSIONS COURT, FAST TRACK COURT-I, ALAPPUZHA DATED 22-07-2005**
**---------------------------------**
**APPELLANT(S)/ACCUSED: --------------------**
**AYYAPPAN, AGED 55 YEARS, S/O. KOCHURAMAN, BHAGAVATHY KANDATHIL VEEDU, MUTHUKUAL VADAKKUM MURI, MUTHUKULAM VILLAGE.**
**BY ADVS.SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN**
**RESPONDENT(S)/COMPLAINANT:**
**--------------------------**
**STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.**
**BY PUBLIC PROSECUTOR SRI. DHANESH MATHEW MANJOORAN**
**THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**NS**
## **P.D. RAJAN, J. -------------------------------Crl. Appeal No.1351 of 2005 ---------------------------------Dated this the 8[th] day of March, 2016**
## **J U D G M E N T**
This appeal is preferred by the accused against the conviction and sentence in S.C. No.504 of 2003 of the Additional Sessions Judge, Fast Track -I, Alappuzha under Sec.8(1) and (2) of the Abkari Act. The charge against the appellant is that on 12.06.2001 at 12.30 p.m., the Excise Inspector, Kanjangad, was conducting patrol duty, he found the appellant carrying two bottles of arrack (each containing 750 m.l.) in front of the Kurumbakara temple on the side of the Ummarumukku-Chakkilakkadavu road. The appellant was arrested and the contraband articles were seized, reaching at the Excise Range, he registered a crime. After completing investigation, the Range Inspector, Kayamkulam laid charge before the Judicial First Class Magistrate Court, Harippad. From there, the case was committed to Sessions Court, Alappuzha and subsequently, it was made over to Additional Sessions
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Judge (Fast Track-I).
2. During trial, prosecution examined PW1 to PW5 and marked Exts. P1 to P4. They also admitted MO1 to MO3 as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He examined DW1 and marked Ext.D1. Learned Additional Sessions Judge convicted the accused under Sec.8(1) and (2) of the Abkari Act and sentenced him to rigorous imprisonment for two years and fine of Rs.1,00,000/- (Rupees one lakh only). In default of payment of fine, simple imprisonment for six months. Being aggrieved by that he preferred this appeal.
3. The main contention advanced by the learned counsel appearing for the appellant was that the arrest memo and forwarding note were not prepared by the investigating officer. Therefore, there is violation of the directions of the Kerala Excise Manual and the Abkari Act issued by this court and also no guarantee that the seized articles were properly produced before the court.
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4. Learned Public Prosecutor replied that all relevant documents were produced in the trial court, but during trial, they were not marked. Therefore, the failure to mark those documents cannot be treated as a failure on the side of the prosecution.
5. While considering the contention as a whole, first I analysed the evidence of the occurrence witnesses. The occurrence was deposed by the Excise Inspector, Kayamkulam who was examined as PW1. His evidence shows that on 12.06.2001 at 12.30 p.m., he was conducting patrol duty and when he reached in front of the Kurumbakara temple near UmmarumukkuChakkilakkadavu road, he found the appellant walking along the road carrying a plastic bag. On seeing the excise party, he became frightened and tried to escape from there. At that time, PW1 intercepted him and inspected the plastic bag in which he detected two bottles of arrack (each containing 750 ml). The accused was arrested. He took 200 m.l. from each bottle as sample and sealed it at the place of occurrence. PW1, accused and
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the independent witness present there put their signature in the label and affixed it in the bottles and sealed it. He prepared Ext.P1 mahazar. The procedures were narrated in it. MO1 and MO2 are the bottles and MO3 is the cover seized from the appellant. Reaching at the excise office, he registered the crime. Ext.P2 is the crime and occurrence report. He prepared the requisition for sending the sample to chemical examiners lab. Ext.P3 is the property list. Even though PW1 was cross examined by the defence counsel, nothing has been brought out in evidence to discredit his oral testimony. PW2 supported the evidence of PW1 who was present at the time of seizure of MO1 to MO3. He gave the same version stated by PW1 with regard to the seizure of MO1 to MO3. His evidence shows that, PW1 took sample from MO1 and MO2 and the balance arrack was sealed at the place of occurrence itself. Analyzing the oral evidence of PW1 and PW2, it is clear that MO1 to MO3 were seized from the possession of the appellant by PW1.
6. For discussing the evidence of official
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witnesses, I have examined whether there is any independent corroboration to the alleged seizure. PW3, an independent witness who attested Ext.P1 seizure mahazar, deposed that he never saw the seizure of MO1 to MO3 from the possession of the appellant. PW4 also, another independent witness who attested Ext.P1, did not
support the prosecution case. But, both witnesses admitted their signature in Ext.P1 seizure mahazar. Mere denial of their presence do not infer that the fact recorded in the mahazar is untrue. But on a careful analysis and appraisal of the evidence it is true that the evidence of seizure is believable.
7. The investigation in this case was conducted by PW5, the Excise Inspector. According to PW5, the samples were produced before the court, from there, it was forwarded to chemical examination lab. Ext.P4 is the report after chemical examination. After completing investigation, he laid charge before the court. Analysing the oral evidence of PW1, PW2 and PW5, no effective cross examination was made by the learned counsel
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appearing for the appellant to discredit the oral testimony of the official witnesses. No personal enmity is alleged against the Excise officials. The only defence contention put forward by the appellant was that the appellant changed his political party from RSS to Indian National Congress and that enmity influenced the excise officials to foist a false complaint. Even though, such a suggestive question was asked during cross examination of PW1, no connecting evidence has been adduced in the trial court to prove the defence contention. The appellant examined DW1 to substantiate the above defence. Even though, DW1 deposed such a statement, nothing has been stated by the appellant to prove that he was a member of RSS, subsequently he changed his political party and he has in enmity with one Prakasan. In the absence of such corroborative evidence, the defence contention put forward by the appellant is discarded.
8. During trial, the Public Prosecutor, who conducted case in the trial court failed to mark the relevant documents such as arrest memo, arrest
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intimation and the copy of the forwarding note produced by the investigating officer. The non marking of the documents itself is not a ground to discard the oral testimony of PW1 and PW2, if it is believable otherwise. PW1 and PW2 belong to Excise Department is not a ground to disbelieve their oral testimony. Analysing the oral and documentary evidence, it is found that the prosecution succeeded in proving the case against the appellant. Therefore, the offence under Sec.8(1) and (2) of the Abkari Act is confirmed.
9. The learned counsel for the appellant contended that wife of the appellant, aged more than 65 years, is suffering from mental ailments and nobody is there to look after her. The quantity of arrack seized from the appellant is 1½ litres only. Considering the facts and circumstances of the case, sentence imposed by the trial court needs some modification. In the circumstance, the appellant is sentenced to simple imprisonment for one month and a fine of Rs.1,00,000/- (Rupees one lakh only) in default of payment of fine, simple imprisonment for 15
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days, according to the decision reported in **Sasikumar v. State of Kerala [2012 (4) KLT 867 SC].** The period of detention undergone by the appellant during investigation, trial and enquiry shall be entitled to set off in terms of the imprisonment imposed. Appellant is directed to surrender in the trial court to undergo the modified sentence, failing which, the learned Additional Sessions Judge, Fast Track-I, shall issue non bailable warrant forthwith.
The appeal is partly allowed as above.
NS/10/03/2016
Sd/- **P.D. RAJAN, JUDGE** / True Copy / P.A. To Judge
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