Bhaskaran T.K. v. The Excise Inspector, Thamarassery, and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **FRIDAY, THE 5TH DAY OF AUGUST 2016/14TH SRAVANA, 19382011** **CRL.A.No. 456 of 2009 ( )** **-------------------------SC 1307/2006 of ADDL. DISTRICT AND SESSIONS COURT (ADHOC)-II, KOZHIKODE** **------** **APPELLANT(S)/ACCUSED:** **--------------------** **BHASKARAN T.K., S/O.KELU NAIR, THOTTUNKARA HOUSE, KIDAVOOR AMSOM, KIDAVOOR P.O., KOZHIKODE DISTRICT.** **BY ADV. SMT.K.V.RESHMI** **RESPONDENT(S)/COMPLAINANT & STATE: ----------------------------------** **1. THE EXCISE INSPECTOR, THAMARASSERY EXCISE RANGE, THAMARASSERY, (CRIME NO.12/2003).** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. S. HYMA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** ## **B.KEMAL PASHA, J.** ================ Crl.A. No.456 of 2009 ======================= Dated this the 5[th] day of August, 2016 ## **JUDGMENT** The appellant is the accused in S.C.No.1307/2006 of the Additional Sessions Court (Adhoc-II), Kozhikode, who stands convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of 1,00,000/-, in default, to undergo₹ rigorous imprisonment for six more months. 2. The prosecution case is that on 16.07.2003 at 1.30 p.m., the appellant was found carrying 10 litres of arrack in a can, through the road situated at the southern side of the house of one Koya, at Kattippara in Poonur desom, Kidavur amsom. 3. The offence was detected by PW1 Preventive Officer attached to the Excise Circle office, Kozhikode. He Crl.A. No.456 of 2009 2 seized the contraband and drew a sample of 180 ml. The contraband and the sample were seized through Ext.P1 mahazar. As the accused had ran away, he could not be apprehended. PW1 took the contraband and the records to the Excise Office and handed over the same to PW5 Excise Inspector, in the evening of 16.07.2003. PW5 registered the crime on 17.07.2003 through Ext.P2 crime and occurrence report. On 17.07.2003, he prepared the forwarding note, the copy of which is Ext.P3 and produced the sample and the contraband before court. PW6 Excise Inspector, Thamarassery conducted the investigation and filed the complaint, on getting Ext.P4 certificate of chemical analysis. 4. On the side of the prosecution, PWs.1 to 6 were examined, Exts.P1 to P5 were marked and MO1 was identified. No defence evidence was adduced. The court below found the appellant guilty of the offence punishable under Section 8(2) of the Abkari Act, convicted him thereunder and sentenced him as aforesaid. Crl.A. No.456 of 2009 3 5. Heard the learned counsel for the appellant and the learned Public Prosecutor. 6. The learned counsel for the appellant has argued that there is no sufficient evidence in this case to prove the correct identity of the accused and further that the court below has failed to take note of the delay committed by PW5 in registering the crime. According to the learned counsel for the appellant, there is no sufficient evidence to convict the accused for the offence under Section 8(2) of the Abkari Act. The learned counsel for the appellant has pointed out that this is a case wherein the concerned accused had allegedly ran away after leaving the contraband and no contraband was seized from the possession of such an accused. It has also been argued that the accused was placed under arrest after ten days of the incident. 7. According to PW1, while he along with the other Excise personnel were on patrol duty at 1.30 p.m. on 16.07.2003, they could see the accused coming with a can through the road. On seeing them, the accused ran away Crl.A. No.456 of 2009 4 from the place after leaving the can to the road side. When the can was examined, it was found containing 10 litres of arrack. The sample was drawn and the contraband was seized through Ext.P1 mahazar. He identified MO1 can. PW1 had identified the accused in court. PW1 has clearly deposed that he had prior acquaintance with the accused and he explained that his acquaintance was because of the fact that the accused was involved in several other Abkari cases prior to the incident. 8. On a perusal of Ext.P1 mahazar also, the said versions regarding the identification of the accused by PW1, seems to be correct. In Ext.P1, it has been clearly stated that while they were on patrol duty, they could see Bhaskaran, aged about 37, son of Kelu Nair of Thottunkara, Poonur desom, Kidavoor amsom, coming towards them by holding a can. On seeing the excise party, he ran away from the place after dropping the can to the road side. The versions in Ext.P1 mahazar also clearly show that PW1 and party could clearly identify the said person as Bhaskaran, Crl.A. No.456 of 2009 5 son of Kelu Nair. The accused in this case is none other than Bhaskaran, son of Kelu Nair. PW2 was an Excise guard, who was present along with PW1 at the time of seizure. He also has identified the accused in court. According to him, he could see the accused coming with the can and on seeing them, the accused ran away from the spot after leaving the can. From the evidence of PWs.1 and 2, there is absolutely nothing to doubt their identification of the accused. 9. Regarding the registration of the crime, it has come out that the contraband was produced by PW1 along with the mahazar before PW5 after 5.30 p.m. on 16.07.2003. He registered the crime on the next day. It is true that PW5 could have registered the crime then and there. At the same time, this is a case wherein the accused had ran away and the accused was not available at that time. PW5 might have chosen to register the crime on the next day by expecting the arrest of the accused. When the contraband was produced on the next day itself before court, the slight Crl.A. No.456 of 2009 6 delay caused in the registration of crime does not assume any importance at all. 10. Ext.P4 certificate of chemical analysis shows that the sample contained 28.47% by volume of ethyl alcohol. On going through the entire evidence and the records and on hearing either side, it has come out that the prosecution could prove the guilt of the accused beyond doubt. There is absolutely nothing to interfere with the conviction entered by the court below. 11. The learned counsel for the appellant has canvassed for maximum leniency of this Court in the sentence. Going by the decision of the Apex Court in **Sasikumar v. State of Kerala** [2012 (4) KLT 867 (SC)] followed by this Court in **Rajan v. State of Kerala** [2013 (3) KLT 654], this Court is of the view that the appellant is entitled to leniency in the question of sentence. This Court is of the view that a sentence of simple imprisonment for three months and to pay a fine of 1,00,000/-, in default, to₹ undergo simple imprisonment for 15 more days will meet Crl.A. No.456 of 2009 7 the ends of justice in this case. In the result, this Crl.Appeal is allowed in part by maintaining the conviction and modifying the sentence as follows: The appellant shall undergo simple imprisonment for three months and to pay a fine of 1,00,000/-, in default, to₹ undergo simple imprisonment for 15 more days under Section 8(2) of the Abkari Act. It is made clear that the appellant is entitled to set off, of the period, if any, undergone by him in detention in connection with the investigation, inquiry, and trial of this case, under Section 428 Cr.P.C. Sd/- ## **B.KEMAL PASHA, JUDGE** stu //True copy// P.A to Judge. Crl.A. No.456 of 2009 8