Binish, S/O. Sasi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY, THE 21ST DAY OF JUNE 2017/31ST JYAISHTA, 1939** **CRL.A.No. 732 of 2004 (B) --------------------------** **AGAINST THE JUDGMENT IN SC NO.366/2003 OF THE ADDITIONAL DISTRICT COURT (ADHOC-I), ERNAKULAM** **APPELLANT/ACCUSED:** **--------------------** **BINISH, S/O.SASI, ORORAPARAMBIL HOUSE, VELIYATHUNADU KARA, KARUMALOOR VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT.** **BY ADVS.DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR** **RESPONDENT/COMPLAINANT:** **--------------------------** **STATE OF KERALA, REPRESENTED BY** **DIRECTOR OF PUBLIC PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. K. K. SHEEBA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SKV** ## **K.P. JYOTHINDRANATH, J.** ========================== Criminal Appeal No.732 of 2004 ========================== Dated this the 21[st] day of June, 2017 ## JUDGMENT This appeal is preferred against the judgment of conviction and sentence dated 23.03.2004 made in SC No.366/2003 on the files of the Additional Sessions Court (Adhoc-I), Ernakulam. Conviction is under Section 55(a) of the Abkari Act and sentence is to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,00,000/- with default imprisonment for one year. 2. The facts relevant for consideration of this appeal is as follows:- On 23.04.2001 at about 2.20 pm, the accused was found in possession of 57.750 litres of Indian Made Foreign Liquor and thereby committed the above offence. Criminal Appeal No.732 of 2004 2 Prosecution altogether examined six witnesses and Exts.P1 to P8 were marked. MO1 to MO5 were identified. After appreciating the evidence, the trial court convicted the accused as stated above and sentenced. Aggrieved by the above conviction and sentence, this appeal is preferred. 3. When the appeal came up for hearing, the learned counsel appearing for the appellant submitted before this Court that here is a case where due to some suspicion, this appellant was seen arrested and implicated in the case. This aspect will be clear from the prosecution case itself. As per the prosecution case, he was seen arrested from the premisses of Aluva Railway Station. The time of arrest was 2.20 pm on 23.04.2001 whereas, as per MO5, it can be seen that accused received the said ticket at 13.25 hrs. It is the submission of the learned counsel that as per the prosecution case itself, when he reached inside the Railway Station at 1.25pm,by no stretch of imagination it can be said Criminal Appeal No.732 of 2004 3 that the accused was the person who imported the said contraband from Goa. As per the prosecution case itself, immediately before the seizure, the Kurla Express reached therein from Goa and there is also a label on the contraband saying that it is for the sale at Goa. On the said basis, prosecution was projecting a case that it was a contraband imported from Goa. Otherwise there will be only an allegation that he was kept in possession of excess quantity of Indian Made Foreign Liquor, which will attract only an offence punishable under Section 63 of the Abkari Act. But the positive case of the prosecution was that it was brought from Goa and when the circumstances are like this, it is an indication that he is not the person who imported liquor to Kerala. Positively, prosecution got another case that along with the appellant, there was another person whose name was allegedly one Tomy, that person was not an accused in this case. The circumstances will probabilise that, Tomy was Criminal Appeal No.732 of 2004 4 the person who brought or imported the liquor to Kerala. When that person was not available for arrest, this accused was implicated. It is the further submission that as per the prosecution case itself, accused was not arrested from the spot. Two persons were seen with two suit cases and an air bag. On seeing the excise officials, they ran away and by chasing one among them was arrested and brought to the spot. There was no arrest when the accused was seen possessing any of the contraband items. The so called suit cases left behind were marked as A, B and the air bag as C. Who was possessing which bag was not specified by the prosecution. No details were provided in the mahazar also. One bag and air bag was carried by this accused is the evidence. There was no positive evidence by PW1 that which bag was carried by this accused. 4. Now, the main point argued before me is that there was no forwarding note in this case. The dictum laid down by Criminal Appeal No.732 of 2004 5 this Court in **Omanakuttan v. State of Kerala,** Criminal Revision Petition No.34/2012 is relevant in this aspect. The said decision was rendered following the dictum laid down by the earlier decisions of this Court i.e., **Sasidharan v State of Kerala** [2007 (I) KLT 720), **Ravi v State of Kerala** [2011 (3) KLT 354] and **Prakashan and Another v. State of Kerala** [2016 (I) KLT 311]. 5. In this case, altogether 57.750 litres of Indian Made Foreign Liquor was seen seized. The only argument advanced by the appellant is that there may be mistaken identity that resulted in the arrest of this person. It can be seen that in Ext.PI, it is stated by the excise officials that he made a confessional statement. Now, Abkari officers are having the features of a Police Officer. As per Section 50(2), an abkari officer is entitled to file a final report under Section 173 of the Cr.P.C. i.e, when the powers of the police in respect of investigation is vested upon the abkari officer, the Criminal Appeal No.732 of 2004 6 said abkari officer can be treated as a police officer. If that is so, the bar under Sections 25 and 26 of the evidence Act will squarely applicable in respect of a statement made by an accused to the excise official. Then that aspect will not be helpful for the prosecution. Thus, the only point is regarding possession. In this case, as per the prosecution evidence, that is evidence rendered by PW4, it can be seen that he himself is the person who conducted the persons. When the excise guards chase the person and brought to the excise office if there is a mistaken identity, that would have been known to him. It can be seen that it is a case of chase and arrest. Under such circumstances, the mistaken identity will not be therein. 6. The next point argued before me is regarding forwarding note, In this case, surely no forwarding note was seen produced or marked. But at the very same time, on perusal of property list, which was marked as Ext.P5, it can Criminal Appeal No.732 of 2004 7 be seen that there was a request to send item No.4 and 5 to the Regional Chemical Laboratory for Chemical Examination. There was also endorsement by the Magistrate to that affect. From the property list, it can be seen that the Magistrate so ordered on 25.04.2001 itself. There was only two days delay. But it can be seen that practically arrest was on the noon on 23.04.2001 and thereafter, only one day seems to be therein. Under such circumstances, there cannot be practically any delay. 7. Next point is regarding forwarding note. Surely, when there was separate forwarding note, then non marking of the same will be fatal to the prosecution. In this case, when the property list immediately reached before the court and further in the very same property list a request was made, then the dictum laid down by this Court in the above mentioned decisions will not be applicable. Surely, when court himself is taking the sample and forwarding the same, Criminal Appeal No.732 of 2004 8 it will be only desirable to examine the property clerk. Thus, it cannot be said that any prejudice is caused by the appellant in non marking the forwarding note in this case, especially when the request is in the property list itself and there is also specific order by the Magistrate to send item No.4 and 5 for chemical analysis. Thus, it can be seen that there is nothing to interfere with the conviction entered into by the court. 8. The next aspect to be considered is regarding the sentence. In this case, the court below awarded a sentence of imprisonment for three years. It is a fact that there was no total prohibition during the period of detection. As per the prosecution case itself, there is nothing before the court that he was the person who imported the seized article from Goa. Prosecution got marked ticket as MO5, it indicates that he came to the railway station by purchasing a platform ticket. Considering the totality of the case and further keeping in Criminal Appeal No.732 of 2004 9 mind that prosecution got a case that another person was also therein, who will be the person actually brought the article herein, but only this person a temporary possessor of the same, that also only a part of the same, a harsh punishment is not warranted. The appellant is sentenced to undergo rigorous imprisonment for two months and also to pay fine of Rs.1,00,000/- with default simple imprisonment for one month. Hence this appeal is allowed in part with modification/ reduction of sentence as stated above. Sd/- ## **K.P. JYOTHINDRANATH, JUDGE** /TRUE COPY/ SKV P.A. TO JUDGE