Biju v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 29TH JULY 2011 / 7TH SRAVANA 1933 CRL.A.No. 10 of 2011(A) ----------------------SC.388/2008 of ADDL. SESSIONS COURT(ADHOC ) FAST TRACK- III, PATHANAMTHITTA .................... APPELLANT: -------------- BIJU, C.NO.5468, CENTRAL PRISON, THIRUVANANTHAPURAM. BY ADV. PRAMOD KOCHUTHOMMEN E (STATE BRIEF) RESPONDENT: --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. PUBLIC PROSECUTOR SRI P.A. SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29.7.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J. --------------------------------------------Crl.A. No. 10 of 2011 --------------------------------------------Dated this the 29[th] day of July, 2011** ## **JUDGMENT** The appellant is the accused in S.C.No.388 of 2008 of the Court of Additional District & Sessions Judge (Ad hoc) Fast Track Court-III, Pathanamthitta. The challenge in this appeal is against the conviction and sentence imposed on him under section 8(2) read with 8(1) of the Abkari Act. 2. The prosecution case is that on 2.1. 2008, at 8 p.m., the accused was found in possession of a white plastic can containing 1 ½ litres of arrack in the paddy field at Vayalil junction in Muruppelthara of Enadimangalam village and thereby he committed the said offence. On the basis of the said allegation, crime No.17/2008 was registered in the Adoor police station for the offence under section 8(2) read with Section 8(1) of the Abkari Act. On completing the investigation, the police preferred report in the court of Judicial First Class Magistrate, Adoor wherein, cognizance was taken for the said offence and instituted C.C.No.17/2008 and subsequently, by order dated 24.1.2008, in the above proceedings, the learned Magistrate committed the case to the Sessions Court, where the case was received on file as CRA 10/2011 **-2-** S.C.No.388/2008 and subsequently the same was made over to the trial court for disposal. 3. Thus, when the accused was produced, after hearing the defence as well as the prosecution, the learned Sessions Judge of the trial court framed a formal charge against the accused for the ofence punishable under section 8(2) read with Section 8(1) of the Abkari Act which was read over and explained to the accused, who in turn denied the same and pleaded not guilty. Consequently, the prosecution has examined PWs 1 to 5 and marked Exts. P1 to P12 and identified MO1 material object. On the basis of the above evidence and materials, the trial court has found that the prosecution has succeeded in proving the guilt of the accused beyond shadow of doubt and accordingly, the accused is found guilty of the offence under section 8(2) read with 8(1) of the Abkari Act and accordingly, he is convicted thereunder. On such conviction, the accused is sentenced to undergo rigorous imprisonment for 8 years and to pay a fine of one lakh rupees, and in default, to undergo simple imprisonment for one year for the said offence. Set off was allowed. It is the above order of conviction and CRA 10/2011 **-3-** sentence and the judgment of the trial court are under challenge in this appeal. 4. As the appellant is undergoing imprisonment, in pursuance of the judgment impugned, he had preferred the present appeal from the jail and on receiving the same, as directed by this Court, the Registry has appointed Sri Pramod Kochuthommen E., a counsel from the panel of State Brief, to prosecute the appeal on behalf of the appellant. Thus I have heard Sri Pramod Kochuthommen E, the counsel for the appellant and Sri P.A Salim, the Pubic Prosecutor appearing for the Sate. 5. The crux of the prosecution allegation is that the appellant/accused was found in possession of 1 ½ litres of illicit arrack at about 8 p.m on 2.1.2008 in the paddy field at Vayalil junction in Muruppelthara of Enadimanglam village. As indicated earlier, in order to substantiate the above allegations, the prosecution has examined 5 witnesses and produced Exts.P1 to P12 documents. Out of the 5 witnesses PWs 1 and 2 are the attestors to Ext.P1 mahazar. But during the trial of the case, they turned hostile to the prosecution. PW3 is a Police CRA 10/2011 **-4-** Constable attached to Adoor police station who accompanied PW5, the detecting officer. When he was examined, he had deposed in terms of the prosecution case and the prosecution has marked MO1 plastic can through him. When PW3 was examined, he had deposed regarding the procedures adopted by PW5 towards the seizure of the contraband article and drawing of sample and arrest of the accused etc. PW4 is the thondi section Clerk of the committal court who verified and received the thondi articles on 3.1.2008 and entered the same in the property register. Ext.P2 is the relevant page of property register which marked through PW4. PW5 is the S.I, of Police, Adoor police station who detected the ofence. Though PW5, the prosecution has marked Ext.P3 arrest memo, Ext.P4 inspection memo, Ext.P5 custody memo , Ext.P6 intimation sent to the father of the accused , Ext.P7 FIR in crime No.17/2008 of Adoor police station, Ext.P8 remand report, Ext.P9 property list, Ext.P10 forwarding note, Ext.P11 covering letter sent by the committal court to the chemical analysis lab and finally Ext.P12 chemical analysis report. According to PW5, on 2.1.2008, when he was on patrol duty along with PW3 at 8 CRA 10/2011 **-5-** p.m., they saw the accused standing in the paddy field near to the Vayalil junction. According to PW5, on seeing the accused in a suspicious circumstance, they stopped the vehicle and rushed near to the accused and he inspected the white plastic can possessed by the accused in the presence of Pws 1 and 2. According to PW5, he had identified the content of MO1 as illicit arrack by smelling and tasting of the same. Consequently, the accused was arrested from there as per the documents referred to above and he had also deposed the details and steps taken for drawing two samples. PW5 further deposed that on completing the proceedings connected with the seizure, he returned to the Police satiation with the accused and the contraband articles and registered Ext.P7 FIR. According to him, the accused was produced before the committal court on 3.1.2008 as per Ext.P8 remand report. It is also his evidence that on the date of production of the accused, he had produced the contraband article as per Ext.P9 property list. According to him he filed Ext.P10 forwarding note requesting the court to send the samples for chemical analysis, on the basis of which, with the covering letter Ext.P11, the CRA 10/2011 **-6-** committal court sent the samples for chemical analysis and in turn Ext.P12 chemical analysis report was obtained which wound show that item No.1 contains 15.29% and item No.2 contains 28.74% by volume of ethyl alcohol. M.O1 plastic can was also identified by himself. According to PW5, he preferred the charge before the court. It is on the basis of the above evidence and materials, the trial Court entered into the finding in favour of the prosecution and against the accused. 6. The learned counsel for the appellant submitted that in the present case, there is no independent evidence to corroborate the version of PWs 3, 4 and 5 who are highly interested and therefore the case of the prosecution cannot be believed. It is also the submission of the learned counsel that though Pws 3 and 5 claimed that PW5 has drawn samples in two bottles which containing 220 ml, as noted by PW4, there is only 200 ml in the sample bottles and therefore, the entire prosecution case is under shadow of doubt and therefore, the same cannot be believed and accordingly, the petitioner is entitled to get benefit of doubt. It is also the submission of the learned counsel that even as per Ext.P12 chemical analysis CRA 10/2011 **-7-** report, item No.1 contained 15.29% and item No.2 contained 28.74 by volume of ethyl alcohol. But there is no explanation for the variation regrading the percentage of ethyl alcohol and thus according to the learned counsel , in the absence of any proper explanation for the same, it cannot be held that the accused was found in possession of arrack. Another contention raised by the learned counsel is that the appellant was falsely implicated in the crime. Thus according to the learned counsel, the appellant is entitled to get acquittal. 7. On the other hand, the learned Public Prosecutor submitted that even though PWs 1 and 2 turned hostile, the other evidence of the prosecution is in tact and there is nothing on record to disbelieve the evidence of Pws 3, 4 and 5 and, therefore, the trial court is correct in its finding against the accused and in favour of the prosecution. It is also the submission of the learned Public Prosecutor that as correctly pointed out by the learned Sessions Judge, the evidence of PW4 noting that the samples contained 200 ml is only a clerical mistake and the said findings of the court below is supported by other contemporaneous documents like Ext.P1 mahazar, Ext.P8 CRA 10/2011 **-8-** remand application, Ext.P9 property list, Ext.P10 forwarding note and Ext.P12 chemical analysis report. It is also the submission of the learned Public Prosecutor that the minor variation regarding the percentage of ethyl alcohol is not sufficient to disbelieve the prosecution case, especially, when the seizure is effected from the physical possession of the appellant/accused and in one sample bottle, the presence of ethyl alcohol was detected as 28.74%. Thus, according to the learned Public Prosecutor, no interference is warranted with respect to the findings, conviction and sentence of the learned Sessions Judge and the convection and sentence imposed on the appellant/accused. 8. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the Public Prosecutor. I have carefully gone through the judgment of the trial court and the evidence and materials on record. 9. In the light of the evidence and materials on record and in view of the rival pleadings, the point to be considered is whether the conviction and sentence imposed by the trial court against the appellant is correct and whether any interference CRA 10/2011 **-9-** is warranted. As I indicated earlier though Pws 1 and 2 turned hostile, the evidence of Pws 3 and 5 positively proved the seizure of the contraband from the physical possession of the appellant/accused. PW5 during his deposition, had given a clear account of the entire proceedings adopted by him regarding the seizure of the contraband article and the circumstances which led to the arrest of the accused. The above evidence of PW5 is corroborated by the evidence of PW3. Though PW3 and 5 were subjected to lengthy cross examination, no infirmities or contradictions are brought out so as to disbelieve the evidence of PW3 and 5. It is true that PW1 and 2 turned hostile, but as pointed out by the learned Judge of the trial court, though PWs 1 and 2 turned hostile and deposed against the prosecution that they did not witness the seizure effected by PW5, PW2 had identified his signature on the label affixed on M.O-1 can. They did not dispute their signature that seen in Ext.P1 seizure mahazar. Thus it can be seen that it is not a case where the prosecution has not cited and examined any independent witness to prove its case to corroborate the evidence of official witness. The requirement of CRA 10/2011 **-10-** independent source of evidence arises only when there is any glaring contradiction or infirmities or discrepancy in the evidence of the official witnesses. The above proposition of law is now settled as per the decisions relied on by the learned Judge in **Vikraman v. State of Kerala** (2007 (1) KLT 1010), **Sabu v. State of Kerala** (2007(4) KLT 169 and **Abdul Rasheed v. State of Kerala** (2008 (3) KLT 150). Thus according to me, the prosecution has succeeded in proving the fact that the appellant/accused was in possession of 1 ½ litres of illicit arrack. 10. Of course when PW4 was examined it is brought out on record that in Ext.P2 extract, the quantity of sample contained only 200 ml each, as correctly pointed out by the learned Sessions Judge, which is only a clerical mistake that crept in Ext.P2 when PW4 made entries in the property list. According to me, the above findings of the leaned Sessions Judge is correct since other contemporaneous documents like Ext.P1 mahazar, Ext.P8 remand application, Ext.P9 property list, Ext.P10 forwarding note and Ext.P12 chemical analysis report issued after chemical analysis of the materials received from CRA 10/2011 **-11-** the committal court as per Ext.P7 covering letter etc. would show that sample bottles are containing 220 ml. each. Ext.P1 mahazar as well as Ext.P7 to P10 documents , the quantity of the contraband article in each bottle was mentioned as 220 ml. Therefore, the arguments of the learned counsel, on the basis of the above defect, according to me has no importance at all. 11. As per Ext.P12 chemical analysis report, it is specifically reported that the sample item No.1 contained 15.29% and item No.2 contained 28.74 % by volume of ethyl alcohol. Even though there is slight variation with respect to the presence of ethyl alcohol in the two sample bottles, especially when the seizure , sampling etc are proved properly and particularly when the contraband articles as well as the samples reached in the Court on the next day of the seizure, the above ground is liable to be rejected. Though the appellant took the contention to the effect that he is falsely implicated in the crime, nothing is brought on record to substantiate such pleading and no evidence is adduced in this regard. Therefore, the said point is also liable to be rejected. CRA 10/2011 **-12-** 12. In the light of the above discussion and the evidence and materials referred to above, I am of the view that the prosecution has succeeded in establishing its case against the accused beyond reasonable doubt and therefore, the findings of the Sessions Judge requires no interference, and accordingly, the conviction recorded by the learned Sessions Judge against the accused is confirmed. 13. The learned counsel for the appellant vehemently submitted that though the allegation is that the appellant/accused was found in possession of 1 ½ litres of illicit arrack, the sentence imposed against him is highly arbitrary and disproportionate and unreasonable and hence, interference of this court is warranted with respect to the sentence. I find some force in the above submission. As correctly pointed out by the learned counsel, though the contraband article found in possession of the appellant is only one and a half litres, the learned Sessions Judge imposed a sentence of 8 years of Rigorous imprisonment and a fine of Rs.one lakh and the default sentence is fixed as one year simple imprisonment. There is no finding by the learned Sessions Judge to the effect that the CRA 10/2011 **-13-** accused is a habitual offender or he had involved in any other case either before the conviction or after his involvement in the present case. At the time of the judgment, the appellant/accused was at the age of 32 years who was working as a coolie. However, the offence alleged against him and proved is a very serious one and therefore a suitable punishment should be imposed against him. Thus considering the entire facts and circumstances involved in this case, and the circumstances specifically mentioned above, I am of the view that one year imprisonment is sufficient to meet the ends of justice and the default sentence can be reduced into three months simple imprisonment. Accordingly, in modification of the sentence imposed against the appellant by the trial court, he is sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. one lakh, in default, to undergo imprisonment for three months under section 8(2) read with 8(1) of he Abkari Act. The appellant is entitle to get the benefit under section 428 Cr.P.C. In the result, this Appeal is disposed of confirming the conviction of the appellant/accused under section 8(2) read with CRA 10/2011 **-14-** 8(1) of the Abkari Act recorded by the Sessions Court whereas the sentence is modified subject to the extent indicated above. In the light of the above order with respect to the sentence, it appears that the appellant is entitled to get release from jail in case he is not required in any other case. It appears that the appellant was originally arrested on 2.1.2008 and he was released on bail on 6.2.2008. It is discernible from the judgment that thereafter he was in custody right from 17.5.2010 till the pronouncement of the judgment and thereafter he is in the Central Prison, Thiruvananthapuram from 18.9.2010 onwards. In the above circumstances, the registry is directed to forward gist of this order to the Superintendent of Central Person, Thiruvananthapuram for further action. **V.K.Mohanan, Judge.** Kvm/-