Gangadhar an v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N.K. Balakrishnan
Judgment Date: 2012-01-05
Court Decision / Holding: Conviction under Sec.58 Abkari Act confirmed; substantive sentence reduced to RI for 9 months; fine remains at ₹1,00,000; execution of sentence to be carried out forthwith.
Final Disposition: Appeal allowed in part; conviction confirmed; substantive sentence reduced; execution directed forthwith.

Parties to the Case

Appellants / Petitioners

Gangadharan (accused)

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• P. Vijaya Bhanu
• P. M. Rafiq

Counsels for Respondents

• SMT. V. H. Jasmine

Case Synopsis & Summary

This criminal appeal questions the conviction and sentence of Gangadharan, accused under Section 58 of the Abkari Act for possession of illicit liquor. On 21 April 2000, near the Panchayath road in Anandapuram, Alathur, the accused was found carrying about 10 litres of liquor in a jerry can when intercepted by PW1, a Preventive Officer, and other excise staff in uniform. A sample of 300 ml was drawn from a 375 ml bottle, sealed, labeled, and the rest of the articles were similarly sealed. The seizure was produced before the Magistrate the next day and later reached the trial court, which, after careful evaluation of the evidence, convicted the accused under Sec.58 Abkari Act, sentencing him to RI for one year and imposing a fine of ₹1 lakh with a default RI of three months. The defense contended that the presence of excise officials on a straight road, in uniform, created a scenario where the case could be foisted, noting the liquor could have been left near a railway track and accused brought in to the locus. The prosecution countered, arguing that PW1 and PW3 corroborated, and MO1 was identified; even though PW2's testimony was partial, Exts P1–P3 and P9 supported the chain of custody and the illicit nature of the liquor. The High Court partially allowed the appeal, maintaining the fine but reducing the substantive sentence to RI for nine months, directing execution forthwith.

Provisions of Law Cited

Sec.58 of Abkari Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The defense contends that the case is highly improbable. The accused was found on a straight road, with uniformed excise officials nearby; hence, it was possible to foist a case. PW2 did not sign the seizure memo, and there are gaps in the forwarding notes and sampling procedure. The defense points to Ext.P9 conflicting with standard procedures and argues the reliance on the testimony of PW1 and PW3 without independent corroboration should not sustain conviction. They challenge the adequacy of the prosecution’s chain of custody and emphasize the age of the accused (66) in seeking leniency, suggesting the sentence be adjusted proportionally while maintaining the conviction.

Contentions of Respondents

The prosecution contends that PW1 and PW3 corroborated the arrest and seizure, with Ext.P2 arrest memo and Ext.P3 labeling supporting the chain of custody. Though PW2 offered partial support and did not sign some papers, the evidence shows MO1 containing liquor, a 300 ml sample, and a laboratory result (Ext.P9) revealing 25.21% ethyl alcohol, indicating illicit liquor. The trial court’s analysis is said to be thorough, and the presumption of regular official acts remains intact. The witnesses’ testimony, the physical exhibits, and the lab report collectively justify the conviction under Sec.58 and warrant maintaining the conviction while adjusting the sentence to reflect mitigating factors.”},

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Sasidharan v. State of Kerala	2007 (1) KLT 720	Distinguished	The court notes Sasidharan is not applicable to the facts of this case and distinguishes it on its facts.
Sathi v. State of Kerala	2007 (1) SN Case No.82	Distinguished	The court finds Sathi inapplicable to the present circumstances and distinguishes it on the facts.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **THURSDAY, THE 5TH DAY OF JANUARY 2012/15TH POUSHA 1933** **CRA.No. 1724 of 2004 ( )** **========================** ## **SC.303/2004 of III ADDITIONAL SESSIONS COURT (ADHOC), FAST TRACK-I, THRISSUR** **==========** **APPELLANT/ACCUSED :-** **=====================** **GANGADHARAN, S/O.CHELAKKAL PAPPU, ALATHUR THARAYILAKKAD DESOM ANANDAPURAM VILLAGE MUKUNDAPURAM TALUK.** **BY ADV.SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ** ## **RESPONDENT/COMPLAINANT :-** **===========================** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM.** **PUBLIC PROSECUTOR SMT.V.H.JASMINE** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05-01-2012 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jvt** ## **N.K.BALAKRISHNAN, J. -------------------------------Crl.A. No.1724 of 2004 --------------------------------Dated this the 5[th] day of January 2012** ## **J U D G M E N T** This appeal is directed against the conviction and sentence passed against the appellant for offence punishable under Sec.58 of Abkari Act. He was sentenced to undergo R.I. for one year and to pay Rs.1 lakh as fine and in default to undergo R.I. for three months. 2. The case of the prosecution is that on 21.4.2000 at about 5 PM on the Panchayath road in front of the house of the accused situated in Alathur Tharayilakkad Desom in Anandapuram village, the appellant was found carrying 10 litres of liquor in a jerry can. He was intercepted by PW1, the Preventive Officer and other excise officials. They find that the can contained illicit arrack. The accused was arrested then and there. Sample of 300 ml was taken from the liquor in a bottle of 375ml. It was packed, sealed and Crl.A. No.1724 of 2004 -: 2 :- labelled. The other material objects were also labelled and sealed. The accused and the properties were produced before the learned Magistrate on the next day ie; on 22.4.2000. After conducting investigation, the charge sheet was laid against him. 3. Before the court below PW1 to PW5 were examined and Exts.P1 to P9 were marked. MO1 can with liquor was also identified and marked. Learned Sessions Judge after analysing the entire evidence found that the prosecution could prove that the accused has committed the offence under Sec.58 of the Abkari Act and thus he was convicted and sentenced as mentioned above. 4. Learned counsel for the appellant would submit that the case of the prosecution is highly improbable and unacceptable. According to the prosecution, the accused was found on the Panchayath road. The road at that place is straight. The excise officials were in uniform. Therefore, a person who could see the excise officials at a distance of Crl.A. No.1724 of 2004 -: 3 :- more than 50 or 100 meters could have certainly sped away from the scene. According to the defence, the can containing liquor was seen near the railway track and making use of the same a case was foisted against the appellant. 5. Learned Public Prosecutor would submit that the evidence given by PW1, the Preventive Officer was corroborated by PW3, the Excise Guard and though those witnesses were cross examined in extenso their evidence remained unshaken. Though PW2, the independent witness did not fully support the prosecution it is not disputed that he has not signed the seizure mahazar, Ext.P1 and other papers. It is also pointed out that Ext.P2, the arrest memo and other papers would also prove that the accused was arrested at the place and time mentioned earlier. The evidence given by PW1 and PW3 would show that the accused was found in possession of MO1 can containing about 10 litres of liquor. There is evidence to show that Crl.A. No.1724 of 2004 -: 4 :- sample measuring 300ml was taken in a bottle of 375ml and it was packed, labelled and sealed in the presence of the witnesses then and there. Ext.P3 is the label affixed on MO1 which contained the signature of PW1 and the accused. That also is taken as one of the grounds by the prosecution to prove that the oral evidence given by PW1 and PW3 is further strengthened by Exts.P1 and P3. Learned trial Judge scrutinised the evidence in the correct perspective and found that the appellant was found in possession of the liquor as mentioned above. 6. It is vehemently argued by the learned counsel for the appellant that Ext.P9 would show that the sample reached in the laboratory only on 11.7.2000. But Ext.P9 itself would show that seal on the bottle was in tact and found tallied with the sample seal provided. It is pointed out by the learned counsel for the appellant that copy of the forwarding note was not marked by the prosecution and so it is not possible to verify whether specimen impression of Crl.A. No.1724 of 2004 -: 5 :- the seal was in fact affixed on the forwarding note. But in view of what is stated in Ext.P9 which was not challenged before the court below it is only to be held that the sample was sent to the laboratory through the Excise Guard along with the forwarding note. The fact that the properties were produced on the very next day of the seizure would negative the contention advanced by the appellant that the procedure prescribed for drawing of sample, forwarding of same to the court and then to the laboratory was not duly complied with. The decisions in **Sasidharan** v. **State of Kerala** reported in [2007 (1) KLT 720] and **Sathi** v. **State of Kerala** reported in [2007 (1) SN Case No.82] have no application to the facts of this case. According to the learned counsel, the presumption that the official acts were done regularly and properly cannot be drawn in cases of this nature where the prosecution could have produced the copy of the forwarding note and could have also examined the property clerk as to when and how the sample bottle Crl.A. No.1724 of 2004 -: 6 :- was sent or entrusted to the excise guard. But it is seen that the facts mentioned in Ext.P9 were not seriously challenged by the defence. The fact that properties were produced on the very next day of the seizure would guarantee the correctness or truthfulness of the case put forward by the prosecution. Ext.P9 shows that the sample of liquor contained 25.21% by volume of Ethyl Alcohol. That is far below the prescribed standard. The accused could offer no explanation as to how such a type of liquor happened to be in his possession. Since the percentage of ethyl alcohol was as mentioned above, there can be no difficulty to hold that the liquor possessed by the accused was illicit and as such the conviction of the appellant for the offence under Sec.58 of Abkari Act is confirmed. 7. Learned counsel for the appellant submits that appellant is aged 66 years and so maximum leniency may be shown to him regarding the sentence. But this submission is strongly resisted by the learned Public Prosecutor who Crl.A. No.1724 of 2004 -: 7 :- would submit that the accused was involved in Crime No.78/1999 and two other cases also and so it is argued that no leniency can be shown to the appellant. Considering all the aspects, I find that the sentence can be modified only to a slight extent. In the result, this Crl.A. is allowed. The conviction of the appellant for the offence under Sec.58 of the Abkari Act is confirmed. While maintaining the fine and default sentence awarded by the court below, the substantive sentence is reduced to R.I. for 9 months. The court below will proceed to execute the sentence forthwith. **N.K.BALAKRISHNAN, JUDGE.** Jvt