Chandran, S/o Chathu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **WEDNESDAY, THE 20TH DAY OF FEBRUARY 2013/1ST PHALGUNA 1934** **CRL.A.No. 1383 of 2004 ( )** **-------------------------AGAINST THE JUDGMENT IN SC.439/2002 of ADDL.SESSIONS COURT (ADHOC)-II, KOZHIKODE, DATED 20-07-2004** **APPELLANT(S)/ACCUSED:--------------------** **CHANDRAN, S/O.CHATHU, AGED 36 YEARS BALANCHERY HOUSE, PALLIKKARA AMSOM DESOM KOYILANDY TALUK.** **BY ADV. SRI.SUNNY MATHEW** **RESPONDENT(S)/COMPLAINANT:-** **-------------------------** **THE STATE OF KERALA THROUGH THE EXCISE INSPECTOR, QUILANDY EXCISE RANGE REP: BY THE PUBLIC PROSECUTOR, HIGH COURT, OF KERALA ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.N.SURESH.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **V.K.MOHANAN, J.** = = = = = = = = = = = = = Crl.Appeal No.1383 of 2004. = = = = = = = = = = = = = Dated this the 20[th] February, 2013. ## **J U D G M E N T** The sole accused in SC.No.439/2002 of the Court of the Addl.District and Sessions, Fast Track (Adhoc II) Kozhokode is the appellant and he preferred this appeal against the judgment dated 20.7.2004 of the above court as he is foiund guilty and convicted and sentenced for the offences under Section 55(a) of the Abkari Act. 2. The prosecution case is that on 17.7.2000 at about 12.30 pm. the accused was found carrying 4 litres of illicit arrack in a 5 litre plastic can through Transformer Mukku Purakkad road, ten meter east of the house of Mecheri Kunhiraman in Pallikkara amsom desom of Koyilandy Taluk and thereby the accused has committed the offence punishable under Sec.55(a) of the Abkari Act. On the above allegation Crime No.14/2000 was registered in **Crl.Appeal No.1383/2004.** 2 the Koyilandy Excise Range for the said offences and on completing the investigation a report was filed in the committal court and subsequently instituted SC.No.439/2002. When the accused appeared, a formal charge was framed against him for the offence punishable under Sec.55(a) of the Abkari Act, which when read over and explained to him, he denied the same and pleaded not guilty, which resulted in further trial of the case during which Pws.1 to 5 were examined and Exts.P1 to P9 documents were marked. MO1 plastic can containing illicit arrack is identified and marked as MO1. No evidence either oral or documentary are produced on the side of the defence. The trial court finally found that the prosecution has proved the case against the accused beyond reasonable doubt and the accused is found guilty of the offences under Sec.55(a) of the Abkari Act and thus he is convicted thereunder. On such conviction the accused is sentenced to undergo rigorous imprisonment for two years and to pay a **Crl.Appeal No.1383/2004.** 3 fine of Rs.1,00,000/- and in default he is directed to undergo simple imprisonment for six months. Set off is allowed. It is the above finding, the order of conviction and sentence that are challenged in this appeal. 3. I have heard Sri.Sunny Mathew, learned counsel for the appellant and the learned Public Prosecutor. 4. As I indicated earlier, to substantiate the prosecution allegation, the prosecution has examined Pws.1 to 5 among which Pws.1 and 2 are the Excise officials who involved in the detention of the crime. When Pws.1 and 2 were examined they have deposed that while they were on patrolling duty on 17.7.2000 through Transformer Mukku Purakkad road, Pallikkara amsom desom of Koyilandy Taluk they found the accused coming from their opposite direction holding a plastic can on his right hand and on suspicion they restrained the accused and examined the plastic can and on inspection Pw1 has found that the said plastic can containing 4 litres of liquor which by tasting and smelling **Crl.Appeal No.1383/2004.** 4 realised as illicit arrack and the said facts convinced to the witnesses as well. Both the witnesses deposed before the court towards the steps taken by them to seize the contraband article and also towards drawing the sample. According to these witnesses, the accused was arrested from the spot. When Pw1 was examined, Ext.P1 arrest memo and Ext.P2 seizure mahazar are marked through him. Pw1 has also identified MO1 plastic can containing the illicit arrack. When Pw2 was examined, he had also deposed strictly in accordance with the prosecution allegation and in tune with the deposition of Pw1. Pw2 has deposed that he is a signatory to Ext.P2 seizure mahazar and he has also identified the MO1 plastic can. 5. Pw3 is the Village Officer attached to the Thikkodi Village through whom Ext.P3 sketch got prepared and marked by the prosecution. Though Pw4 an independent witness examined by the prosecution, he turned hostile though he had admitted his signature in Ext.P2. Ext.P4 is **Crl.Appeal No.1383/2004.** 5 the CD portion of the statement of Pw4. 6. Pw5 is the then Excise Inspector attached to Koyilandy Excise Range during the relevant period. According to him, on 17.7.2000 at about 12.30 pm Pw1 has produced the accused with thondy articles and the records before him. Subsequently he registered Ext.P5 occurrence report. According to him, the accused was produced before the court as per Ext.P6 remand report and also produced the property before the court as per Ext.P7 property list. Pw5 has deposed that he prepared Ext.P8 forwarding note with request to send the samples for chemical analysis and thus Ext.P9 report is obtained. He also deposed that his predecessor had arrested the witness. These are the evidence relied on by the learned Judge of the trial court in support of his findings and for convicting the appellant/accused. 7. The learned counsel for the appellant vehemently submitted that the findings of the court below and the **Crl.Appeal No.1383/2004.** 6 judgment are liable to be set aside as the learned Judge miserably failed to note that the prosecution has failed to produce any independent witness and the trial court is wrong in convicting the appellant solely on the basis of the interested evidence of the official witnesses. On the other hand, the learned Public Prosecutor submitted that the prosecution has examined Pw4 an independent witness, but he turned hostile so as to help the accused. According to the learned Public Prosecutor, even though the independent witness turned hostile, in the absence of a case for the defence to the effect that the prosecution witness unbelievable due to contradiction or infirmities in their evidence, absolutely there is no legal bar in acting upon their evidence. The learned Public Prosecutor submitted that the trial court relying upon the reposing on the evidence of prosecution witness and particularly in the absence of any acceptable defence case, convicted the appellant and as such no interference is warranted. **Crl.Appeal No.1383/2004.** 7 8. I have carefully considered the arguments advanced by the learned counsel for the appellant and also the learned Public Prosecutor and I have gone through the judgment of the trial court and the relevant records. 9. In the light of the above arguments and the evidence referred, the question to be considered is whether the trial court is justified in its finding and in convicting the appellant/accused. As I indicated earlier, Pws.1 and 2 when examined, have deposed strictly in terms of the prosecution allegation and those witnesses were though subjected to cross examination, nothing brought on record to disbelieve their version. More over, the evidence of Pws.1 and 2 with respect to the seizure of the contraband article and arrest of the accused are fully corroborated by contemporaneous documents like Ext.P1 arrest memo, Ext.P2 seizure mahazar and further Ext.P5 occurrence report, Ext.P6 remand report, Ext.P7 thondi list and Ext.P8 forwarding note. The timely steps taken by the prosecution towards the **Crl.Appeal No.1383/2004.** 8 investigation further reinforce the prosecution allegation against the accused especially when the defence miserably failed to point out any draw back in the prosecution case. The only contention raised by the counsel for the appellant is that the prosecution case are supported only by the official witnesses and no independent evidence is produced and therefore the prosecution case cannot be accepted. I am unable to sustain the above contention. It is a case where the prosecution has not attempted to adduce independent evidence. On the other hand it can be seen that the prosecution has cited Pw4 an independent witness and examined him, but he turned hostile. It is also relevant to note that Pw4 has admitted his signature in Ext.P2 seizure mahazar. Those facts are sufficient to hold that Pw4 turned hostile so as to salvage the accused from the penal liability. 10. This court in the decision reported in **Vikraman v. State of Kerala** (2007(1) KLT 1010) has held, when **Crl.Appeal No.1383/2004.** 9 evidence of detecting officer is credible, hostility of independent witness is not fatal in Abkari trials, and in another decision reported in **Abdul Rasheed v. State of Kerala** (2008(3) KLT 150) has held, if testimony of official witnesses is blemishless and free from suspicion and inspires confidence, hostility shown by ill-motivated independent witnesses is of no consequence. In the present case as I indicated earlier, though the official witnesses were subjected to cross examination, nothing brought to disbelieve their version. Therefore, even if Pw4 turned hostile, the same will not affect the case of the prosecution. 11. In the light of the above discussion and the evidence on materials referred to above, I am of the opinion that the trial court is fully justified in its findings in convicting the accused for the offences under Sec.55(a) of the Abkari Act. 12. The learned counsel for the appellant submitted that the sentence imposed on the appellant is **Crl.Appeal No.1383/2004.** **==> picture [13 x 10] intentionally omitted <==** disproportionate to the allegation raised against the appellant. Therefore, the counsel submits that some indulgence may be shown in favour of the appellant in respect of the sentence. I find some force in the said submission. From the facts proved it can be seen that the appellant was found in possession of 4 litres of illicit arrack, which is prohibited in the State of Kerala. At the time of the alleged incident the accused was only at the age of 36. The prosecution has no case that the appellant is a habitual offender in similar offence. Thus considering the above, according to me, the sentence imposed on the petitioner requires modification. According to me, one year rigorous imprisonment will be sufficient to meet the ends of justice and while conforming the sentence of fine the default sentence can be reduced to three months simple imprisonment. Thus, in modification with respect to the sentence awarded by the trial court against the appellant, the appellant/accused is sentenced to undergo rigorous **Crl.Appeal No.1383/2004.** 11 imprisonment for one year and he is also sentenced to pay a fine of Rs.1,00,000/-, in default he is directed to undergo simple imprisonment for three months. In the result, the appeal is dismissed confirming the conviction passed by the Court of the Addl.District and Sessions, Fast Track (Adhoc II) Kozhokode under Sec.55(a) of the Abkari Act as per its judgment dated 20.7.2004 in SC.No.439/2002 but, subject to the modification with respect to the sentence to the extent indicated above. **V.K.MOHANAN,** (Judge) **Kvs/-**