Babu s/o Ayyappan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **SATURDAY, THE 23RD DAY OF MARCH 2013/2ND CHAITHRA 1935** **CRL.A.No. 971 of 2012 ()** **-------------------------** **AGAINST THE JUDGMENT IN SC.515/2010 of THE COURT OF SESSIONS,PALAKKAD DIVISION, DATED 10-04-2012** **APPELLANT(S):** **-------------** **BABU S/O.AYYAPPAN, C.NO.476, CENTRAL PRISON, KANNUR** **BY ADV. SRI.K.V.SABU** **RESPONDENT(S):** **--------------** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, KOCHI-682031.** **BY PUBLIC PROSECUTOR SRI.N.SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **V.K.MOHANAN, J.** ----------------------------- Crl.A.No.971 of 2012 -----------------------------Dated this the 23[rd] day of March, 2013 ## J U D G M E N T The sole accused in S.C.No.515 of 2010 on the file of the court of Session, Palakkad Division is the appellant here in as he is aggrieved by the judgment dated 10.04.2012 of the above court in the above case, by which he is convicted and sentenced for the offence under Section 55(a) of the Abkari Act. 2. The prosecution case is that on 23.03.2009 at 21.00 hours, a tanker lorry bearing registration No.TN-51D/7954 driven by the accused along the Coimbatore-Palakkad N.H.Road was stopped at the Excise Check post at Walayar. According to the prosecution, the accused informed PW2 the Excise Inspector and his party that it was an empty tanker and also showed a weigh bridge receipt. According to the prosecution, on suspicion, on the basis of a secret information, a thorough search was conducted in the vehicle and thus a secret door was found at the valve of the tanker and the same was opened. Thus the Excise party found that there were 202 cans kept concealed in the Crl.A.No.971 of 2012 2 secret chamber of the said tank. Each of the cans were having capacity of 35 litres and each of the can was found to contain about 32 litres of rectified spirit and thus the total quantity would come to 6,464 litres of spirit. As there was no proper documents or authority, it was found that the transport of the above liquor was unauthorised. Consequently the accused was arrested and the contraband articles were seized. On the basis of the above allegation, Crime No.14/2009 was registered in the Palakkad Excise Range and on completing the investigation, a report was filed in the Judicial First Class Magistrate Court-I, Palakkad and thereupon C.P.No.12 of 2010 was instituted. Later, by order dated 06.08.2010 the learned Magistrate committed the case to the Sessions court where it was received as S.C.No.515 of 2010 and thereafter the same made over to the present trial court for disposal. Though the accused was initially released on bail, he failed to appear on summons and, therefore, the court below constrained to invoke Section 446 of Cr.P.C and finally the accused was produced by the sureties. Thereafter, the accused remained in custody as an undertrial prisoner till the disposal of the case. So, during the trial, at the request of the accused, 3 Crl.A.No.971 of 2012 Advocate Smt.Santhadevi was appointed to defend the case as per the proceedings of the District Legal Services Authority. Thus after hearing the prosecution as well as the accused, a formal charge was framed against the accused for the offence punishable under Section 55(a) of the Abkari Act which when read over and explained to the accused he denied the same and pleaded not guilty. Consequently the prosecution proceeded to examine PWs. 1 to 5 and produced Exts.P1 to P9 documents, as the evidence for the prosecution. It is also seen recorded that Exts.P3 and P4 produced by the prosecution were marked in evidence as requested by the defence. On completing the prosecution evidence, the accused was questioned under Section 313 of Cr.P.C and he denied the incriminating circumstances and evidence. According to him the evidence are false but he admitted that he was the driver of the tanker lorry bearing registration No.TN-51D/7954 and it was stopped and inspected at Walayar check post. According to him, the tanker was empty and he had produced all the documents required at the check post. It is also his case that he used to be engaged to drive empty tanker lorries to the place called Ambalamukal. No 4 Crl.A.No.971 of 2012 particular evidence either oral or documentary was adduced from the side of the defence. The trial court finally found that the facts and circumstances would show that the accused had been in conscious possession of the contraband articles and that the presumption under Section 64 of the Abkari Act can also be taken against the accused. Thus it was further found that the prosecution could successfully proved an offence punishable under Section 55(a) of the Abkari Act against the accused and accordingly he is found guilty for the said offence and thus he is convicted thereunder. On such conviction, he is sentenced to undergo rigorous imprisonment for 4 years and to pay fine of Rs.1,00,000/- and in default he is directed to undergo simple imprisonment for 9 months. Set off is allowed under Section 428 of Cr.P.C. It is the above finding and the order of conviction and sentence that are challenged in this appeal. 3. Initially the appeal was filed from the Jail directly by the appellant. Though this Court appointed a counsel from the panel of State Brief, subsequently Advocate K.V.Sabu entered appearance and, therefore, the appointment of State Brief is cancelled. Thus I have heard Sri.K.V.Sabu, learned counsel for 5 Crl.A.No.971 of 2012 the appellant and the learned Public Prosecutor. 4. To prove the prosecution allegation, mainly the prosecution depends upon the evidence of PWs.1 and 2. Pws.1 and 2 are the Excise officials involved in the detection of the crime whereas PW3 is an independent witness. When PWs.1 and 2 were examined they deposed strictly in accordance with the prosecution allegation. According to them when they were engaged in inspection of vehicles coming along N.H.Road from Coimbatore side they found a tanker lorry bearing registration No.TN-51D/7594 coming along the road. It was stopped and the accused was found inside of the cabin as the driver of the said vehicle and there was no other persons in that lorry. The vehicle was inspected and a secret door was found fixed at the rear side of the tank. On opening the door, 202 cans were found inside the secret chamber and each of the can has the capacity of 35 litres. According to these witnesses, those cans were taken out in the presence of the accused as well as the witnesses and thereafter all the cans were opened to examine the contents and they realised that it was spirit by taste and smell. According to Pws.1 and 2, the accused had no authority to possess and Crl.A.No.971 of 2012 6 transport or transit spirit. Therefore the accused was arrested by PW2. The tanker lorry and the spirit were seized. Both of them have elaborately spoken to about the steps taken towards the arrest of the accused as well as the seizure of the contraband article. Ext.P1 seizure mahazar is proved through PW1. During the examination of PW2, he deposed as to how the secret chamber was detected and the procedure adopted for the same. According to these witnesses after the arrest and seizure, they returned from the place of occurrence and contraband article, records and the accused were produced in the office of the Excise Range, Palakkd. On producing the accused and the records as well as the contraband article before PW5 the Assistant Excise Inspector, Palakkad Range on 25.03.2009, he registered Ext.P7 occurrence report and prepared Ext.P8 inventory with respect to the material objects produced before him. According to him the contraband articles were produced before the the Deputy Commissioner of Excise, at his request the learned Magistrate of the committal court examined the material objects with Ext.P8 inventory and accordingly issued Ext.P9 certificate in terms of Section 53A of Abkari Act. 7 Crl.A.No.971 of 2012 5. The investigation was undertaken by PW4. Accordingly, he visited the place of incident and prepared Ext.P5 sketch. He questioned the witnesses and their statements were recorded. On receipt of the chemical examiner's report confirming the samples taken from the contraband seized as spirit, he completed the investigation and laid the charge. Ext.P4 chemical examination report is marked through PW4. 6. PW3 is an independent witness examined in the present case to prove the seizure of the contraband article and arrest of the accused. According to PW3 he had seen cans being taken from the tanker lorry and he also deposed that the accused was the driver of the tanker lorry at the time of the incident and that the accused was arrested by the Excise officials. PW3 who is an attestor to Ext.P1 seizure mahazar and Ext.P2 arrest memo identified his signatures in those documents. These are the evidence and materials which are referred to by the learned Judge in support of his finding and to convict the accused/appellant. 7. Sri.K.V.Sabu learned counsel for the appellant vehemently submitted that the prosecution has not proved the Crl.A.No.971 of 2012 8 possession of the contraband article by the accused. According to the learned counsel, the appellant has no control over the vehicle and he was acting only as a driver and his duty was to bring the lorry at Ambalamukal in Kerala and he has unaware of the chamber allegedly seen in the rear side of the lorry. It is also the case of the counsel that there was no proper investigation and it is further contended that there is no proper explanation as to who was the custodian of the contraband article and the lorry, from the time of seizure of the same till producing it in the committal court at 4 pm. on 24.03.2009. So, according to the learned counsel the trial court has not considered the above vital aspect which goes against the prosecution case. Thus according to the learned counsel, the appellant is entitled to get a clear acquittal. As an alternative argument, the learned counsel submitted that appellant has already undergone imprisonment for 1½ years and this court may reduce the sentence for the period which already the appellant undergone. 8. Opposing the above contention, the learned Public Prosecutor strenuously submitted that the evidence of the official witnesses particularly the evidence of PWs.1 and 2 who were Crl.A.No.971 of 2012 9 involved in the detection of the crime are intact and they have elaborately deposed about the involvement of the accused in the commission of the above offence. According to the learned Public Prosecutor, the accused/appellant was arrested along with the lorry from where huge quantity of spirit was recovered and that too from a secret chamber made for that purpose in that lorry. According to the learned Public Prosecutor, it cannot be said that the appellant was unaware of the secret chambers. It is also the submission of the learned Public Prosecutor that with respect to the arrest, seizure of the contraband articles and the lorry, the evidence of Pws.1 and 2 are supported by the independent witness PW3. Therefore there are sufficient evidence to substantiate the prosecution allegation against the accused which was duly considered by the trial court and found against the appellant. Thus according to the learned Public Prosecutor there is no scope for any interference. 9. I have carefully considered the arguments advanced by the counsel for the appellant and the learned Public Prosecutor and I have also perused the evidence and materials on record. 10. In view of the rival contentions and evidence and Crl.A.No.971 of 2012 10 materials on record, the question to be considered is whether the trial court is justified in its finding and convicting the appellant and the further question to be considered is whether the sentence imposed on the appellant is exorbitant and requires any interference and modification. 11. I have already briefly stated the memorandum of evidence available in the present case. The specific case of the prosecution is that the accused was arrested at about 9 pm. on 23.03.2009 from the Walayar check post when he was found in possession of about 6,464/- litres of spirit kept in a secret chamber of the tanker lorry bearing registration No.TN-51D/7954 driven by him. PW1 and PW2 the Excise officials deposed strictly in terms of the prosecution allegation about the detection of the crime, the arrest of the accused, the seizure of the contraband article and the vehicle used for the same. Their evidence are supported not only by the contemporary documents like Ext.P1 seizure mahazar and Ext.P2 arrest memo and other connected documents but also by the evidence of independent witness namely PW3. Their evidence are intact. Nothing has been brought on record to discredit their version. As rightly pointed Crl.A.No.971 of 2012 11 out by the learned Public Prosecutor considering the facts and circumstances involved in the case, it cannot be said that the accused had no knowledge about the inbuilt secret chamber in the vehicle from where the contraband article was detected and seized. Nothing was elicited from the prosecution witnesses or even the accused has no case that he was recently appointed as the driver of the said vehicle or that he was deputed only for the day as a driver of the vehicle. In the absence of any proper explanation about those aspect and when he is not disputing his arrest along with the contraband article which facts are supported by the evidence of the prosecution, according to me, the trial court is fully justified in its finding and convicting the appellant for the offence under Section 55(a) of the Abkari Act. As correctly argued by the counsel for the appellant, the prosecution agency ought to have conducted proper investigation to trace out the source of the contraband article and the persons behind it but such a lapse does not give any chit for the accused for an acquittal. Considering Ext.P7, the crime and occurrence report and Ext.P8 inventory supported by the evidence of PW5 and evidence of PWs.1 and 2 according to me, the contention of the Crl.A.No.971 of 2012 12 counsel that the absence of explanation as to who was the custodian of the contraband articles is not of any relevance, since PW5 had already prepared Ext.P8 inventory which was subsequently certified by the learned magistrate as per Ext.P1 certificate. So the above contention also goes against the accused. 12. From the above discussion and in the light of the evidence and materials referred to above, I am of the view that the contentions advanced against the findings of the court below and the trial court judgment fails and accordingly I confirm the conviction of the appellant for the offence under Section 55(a) of the Abkari Act. 13. Regarding the sentence the learned counsel submitted that the same is exorbitant and arbitrary and requires modification. According to me, the above submission requires positive consideration and from the documents available on record, it appears that on the date of incident the accused was at the age of 48. It is also discernible from the judgment impugned that according to the accused his family consist of his wife and two children and wife has no job or income and he had no 13 Crl.A.No.971 of 2012 previous history of commission of any offence. 14. It is also beyond dispute that in the present case no serious and effective investigation was conducted to trace out the source of the contraband article and the person really involved in the traffic of this contraband article. In this juncture, it is relevant to note that in a recent decision reported in **Rajamani v. State of Kerala [2013 (1) KLT 865 (SC)]** the Apex Court observed that where the driver is not the owner of the contraband or having any financial interest, so long as kingpins are not identified, sentence of driver can be reduced from five years to three years. According to me, the appellant herein is also entitled to get a same treatment because of the factual similarity in the present case. Thus in the light of the above mitigating circumstances and in the light of the above decisions of the Apex Court, I am of the view that sentence imposed on the appellant requires modification. 15. Having regard to the facts and circumstances involved in the case, according to me, the sentence of two years rigorous imprisonment will be sufficient to meet the ends of justice and while confirming the sentence to pay fine of Rs.1,00,000/- the Crl.A.No.971 of 2012 14 default sentence can be reduced in to three months simple imprisonment. Accordingly, the appellant/ accused is sentenced to undergo rigorous imprisonment for a period of two years and he is also directed to pay fine of Rs. 1,00,000/- and default he is directed to undergo simple imprisonment for a period of three months for the offence under Section 55 (a) of the Abkari Act. In the result, this appeal is dismissed confirming the conviction of the appellant for the offence under Section 55(a) of the Abkari Act as rightly imposed by the trial court as per its judgment dated 10.04,2012 in S.T.No.515 of 2010 but subject to the modification with respect to the sentence to the extent indicated above. **V.K.MOHANAN JUDGE** mns