Jayan; Vijayraj @ Vijayan; Vijayan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **TUESDAY, THE 21ST DAY OF JUNE 2016/31ST JYAISHTA, 1938** **CRL.A.No. 1969 of 2011 (A)** **--------------------------AGAINST THE ORDER/JUDGMENT IN SC 562/2002 of ADDL.DISTRICT AND SESSIONS COURT (ADHOC)-IV, TRIVANDRUM** **APPELLANTS/ACCUSED 1, 2 AND 4:** **-------------------------------** ## **1. JAYAN** ## **NEAR AMARAVILA BRIDGE, NEYYATTINKARA VILLAGE,, NEYYATTINKARA TALUK.** ## **2. VIJAYRAJ @ VIJAYAN, S/O.VISWANATHANNADAR** **LAL BHAVAN, PALAKADAVU, THOTTOTHUVILA OF DO.** **3. VIJAYAN, S/O.RAJAYYAN, KIZHAKKUMKARA** - **PUTHEN VEEDU, HOUSE NO.VP.VIII/49, ARUVATTUKONAM, VELLARADA DESOM, VELLARADA VILLAGE.** **BY ADVS.SRI.R.T.PRADEEP** **SRI.SREEKANTH S.NAIR** **RESPONDENT(S)/COMPLAINANT:** **--------------------------** ## **STATE OF KERALA** **PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR:SRI ABHIJITH LESLIE** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.03.2016, THE COURT ON 21.06.2016 DELIVERED THE FOLLOWING:** ## **SUNIL THOMAS, J.** ================= **Crl.Appeal.No.1969 of 2011** ================= Dated this the 21[st] day of June, 2016 ## **JUDGMENT** Accused Nos.1, 2 and 4 in Crime No.236 of 1999 of Kattakkada Police Station, who faced trial in S.C.No.562 of 2002 of the Additional District and Sessions Judge, Fast Track-IV, Thiruvananthapuram and stand convicted for offence punishable under Section 55(a) of the Kerala Abkari Act, have jointly preferred this appeal. 2. According to the prosecution, on 25.07.1999, the second accused acting as the driver of a lorry bearing No.KL-B7589, exhibiting fake lorry number KL-Y-730, along with accused Nos.3 and 4, transported 6090 liters of spirit in 174 cans of 35 litres each in the above lorry, through Mandapathin Kadavu check post at 12.30 noon. Though they stopped the vehicle for checking, while it was being checked, it was forcefully driven away damaging the barricade. The sales tax inspector of the above check post conveyed the information to the Sub Inspector of Police,Kattakkada, who along with police party chased the lorry in Crl.Appeal.1969/11 2 separate vehicles and intercepted it at a place about 7 kms away from the check post. The three accused who were travelling in the vehicle tried to escape and the second accused, the driver was apprehended. He revealed that the lorry belonged to his brotherin-law, the first accused, who had also purchased spirit from a place at Umasamudram in Tamil Nadu. He had entrusted the spirit to be transported to the remaining accused. On the basis of the above information, investigation was conducted and after completion of investigation, final report was laid against all the four accused. The third accused had absconded and the case against him was split up as C.P.No.280 of 2001 and was reported to be pending. Remaining accused Nos.1, 2 and 4 faced the trial. 3. The court below, after evaluating the evidence tendered by the prosecution in the form of oral testimony of PWs1 to 13, documentary evidence in the form of Exts.P1 to P25, found all the three accused guilty, convicted and sentenced them to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,00,000/- with a default sentence of six months each for the offence punishable under Section 55(a) of the Kerala Abkari Act. Set off was also allowed. Aggrieved by the above conviction and sentence, the above accused has preferred this appeal. Crl.Appeal.1969/11 3 4. Heard and examined the records. 5. The crux of the allegation with respect to the transportation of illicit spirit on the relevant day and time is sought to be established through the oral testimony of three sets of witnesses. The first set consists of PWs.1, 2 and 13 who are claimed to be independent witnesses to interception, search, seizure and preparation of contemporaneous documents. The second set of witnesses are examined to establish one part of the incident which happened near the check post, in which, it is alleged that the vehicle which was travelling with concealed spirit covered with coconut palm leaves rammed through the check post. It is alleged that when the vehicle was about to be inspected by the peon of the check post and after he had climbed the vehicle, the barricade was forcefully removed and the vehicle taken with great speed, with the peon on the top. After moving forward for a while, the vehicle was slowed down to give way to another vehicle, when the peon jumped from the lorry and escaped. This part of the investigation was sought to be proved by PW6 who was the Sales Tax Inspector. He had also claimed that he had conveyed the information to the police party. The third part of the incident leading to the chasing of the lorry by the police party, and its Crl.Appeal.1969/11 4 interception by the Sub Inspector of Police and party is sought to be established through the evidence of SI of Police examined as PW12. PW5, 7, 8 and 10 are claimed to be members of the police party who participated in the interception of the vehicle and the seizure. The prosecution essentially relied on the above witnesses to convince the Court that the accused had illicitly transported spirit and was intercepted on the relevant day. 6. PWs.1 and 2, though projected as independent witnesses, turned hostile and did not support the prosecution case. PWs.1 and 2 were claimed to be the witnesses to the seizure mahazar. PW2 though admitted that he had signed the seizure mahazar, according to him, it was at the police station. PWs.1 and 2 denied having witnessed the search and seizure. However, both the witnesses admitted that on the relevant day, they had seen a lorry with coconut palm leaves parked on the road side with its tyres deflated. The second part of evidence is not in accordance with the prosecution case. The accused had a case that the above lorry which was allegedly involved in the transportation of illicit liquor with its tyres punctured was parked on the road side, from where it was seized. According to the accused, they are absolutely innocent of the crime. Both the above witnesses also Crl.Appeal.1969/11 5 deposed that they have seen the vehicle with deflated tyres and according to them, one police man reached the spot and arranged to get the tyres changed and thereafter, the vehicle was driven off. However, all other witnesses projected by the prosecution have uniformly denied the case of the defence that lorry was found parked on the road side with tyres of the vehicle deflated and thereafter the case was set up. 7. PW13 is one witness who is stated to have seen the lorry speeding away and that it was stated to be intercepted by the police. PW13 is a witness to Ext.P1 mahazar. According to him, on the relevant day, he had seen the lorry driven by the second accused. After it had passed, a car followed by a scooter carrying police men came and enquired from him about the lorry. He conveyed that the lorry had just passed. The vehicles thereafter proceeded along the road, used by the lorry. The witnesses deposed that he also followed the vehicle and after some time, the lorry stopped and he saw the second accused running away from the spot. He was chased and caught. Thereafter, from the concealed cabins of the lorry, 174 cans were recovered. They were unloaded, counted, samples taken and mahazar prepared. Crl.Appeal.1969/11 6 8. The version of PW13 was challenged on a premise that PW13 was not a person who had signed Ext.P1 as a witness. Essentially, the cross examination was touching upon the minor discrepancies in the name and address of PW13. However, he asserted that he had spoken in accordance with the evidence collected. His signature in Ext.P1 was identified and admitted by him. Further, the actual identity of the accused is not under challenge. 9. The next part of the evidence is sought to be established through PW6, the Sales Tax Inspector. He deposed that on the relevant day, while he was on duty in the Sales Tax check post, from 6 a.m. to 2 p.m., along with Balachandran Nair the peon, the disputed lorry reached the check post at 12.30 noon. It was carrying dry coconut leaves. Without switching off the engine, lorry was parked, the cleaner came down and informed that it was carrying coconut leaves to be taken to Kattakada. The Peon was directed to inspect the vehicle and he climbed the top of the lorry. While it was being so inspected, the cleaner left the office, removed the padlock of the barricade and when PW6 intervened, he was pushed down and lorry was forcefully taken away. Balachandran Nair was still on the top of the lorry. He Crl.Appeal.1969/11 7 jumped to one side when the vehicle slowed down. He did not sustain any injury. The witness identified the accused who were standing in the dock. He also deposed in accordance with the details found in the contemporaneous documents. 10. PW12 is the Sub Inspector of Police of Kattakada police station who got information regarding the vehicle which had allegedly crossed the check post after damaging the barricade. He chased the vehicle, accompanied by PW5, ASI and PWs7, 8 and 10 other police constables of Kattakkada police station. 11. PW12 in his detailed version deposed that he got an information from the sales tax check post that one lorry was forcefully taken through the check post. There were reasons to doubt that the vehicle was carrying certain illicit substance. Hence, the vehicle was chased and ultimately it got stopped. PW12 along with the remaining members of the police party, intercepted the vehicle and apprehended the second accused who had ran away from the spot. Thereafter they completed the remaining formalities. The witness identified the accused who was standing in the dock. He gave meticulous details regarding the entire process starting from interception, search, seizure and the arrest of the second accused. Ext.P8 is the arrest memo. Ext.P9 is Crl.Appeal.1969/11 8 the inspection memo and Ext.P10 is the remand report in relation to the second accused. PWs.5, 6 and 7 also deposed in accordance with the detailed version in the contemporaneous document marked as Ext.P1. 12. Essentially, the allegation against the second and fourth accused is sought to be established by the oral testimony in the nature of personal identification. PW5 identified the second accused as the driver and the fourth accused as the person who ran away from the spot. PW6, 7, 8, 10 and 12 identified the accused. 13. The version of the witnesses are in conformity with the meticulous details in Ext.P1, the seizure mahazar. Absolutely no serious contradiction or inconsistency could be brought out with the recitals in Ext.P1 and also the oral testimony. Exts.P1, P8 and P9 are the contemporaneous documents. Arrest of the accused at the spot is established by Exts.P8 and P9, which bears his signature also. Even though the witnesses were cross examined in detail, it could not be demolished. 14. The defence set up by the accused as is revealed from the trend of cross examination and the reply given by them in answer to Section 313 Cr.P.C. questioning is one of total denial. Crl.Appeal.1969/11 9 According to the accused, they are totally unconnected with the lorry. The first accused has a specific contention that he is not the owner of the vehicle nor the person in possession of the lorry during the relevant time. Accused 2 and 3 have yet another contention that they have been wrongly implicated. The main defence set up is that the lorry was lying with its tyres punctured and was taken into custody. This part of the evidence is sought to be established from the retracted testimony of PWs.1 and 2, who were projected as the eye witnesses to the incident. They had also gone to the extent of saying contrary to the recitals in Ext.P1 mahazar. However, it is pertinent to note that this does not tally with the version of all other eye witnesses and the recitals in Ext.P1. Hence, the version of PWs.1 and 2 to the extent it is contrary to the recitals in Ext.P1 is only to be discarded. 15. According to the first accused, he had no connection with the lorry or the spirit. According to the second accused, on 25.07.1999, he had gone to Kattakada bus stop after purchasing a watch. A jeep stopped near him, and questioned as to whether he was not the person who ran away from the spirit lorry. Thereafter, he was apprehended and implicated in the present case. The third accused also stated that the version against him Crl.Appeal.1969/11 10 was false. There is absolutely no material to substantiate the above defence. Learned counsel for the accused, relying on the decision in **Nellikunnel Jose v. State of Kerala (2000(2) KLJ (NOC) 29)** contended that the mere presence of the accused near the lorry is not sufficient to prove prosecution case beyond reasonable doubt and offence cannot said to be proved beyond reasonable doubt. However, in the case at hand, it is not the mere presence of the second and fourth accused which is sought to be established against them. The evidence marshalled by the prosecution is with respect to the accused driving the vehicle, the fourth accused travelling in the vehicle, dashing against the barricade and ultimately they running away from the spot, indicating their conscious possession of the contraband article. The evidence establish his involvement. 16. PWs.5 and 8 have deposed that they had conducted the inspection of the vehicle. Mahazar was also prepared contemporaneously and thereafter, they returned to the police station. The case was thereafter handed over to the excise department. PW9 who was a preventive officer of the Kattakada excise deposed that the spirit and the lorry were received by him on 30[th] . Ext.P2 is the property list submitted to the Court and Crl.Appeal.1969/11 11 Ext.P5 the copy of the inventory. According to the witness, the articles were kept in the excise office thereafter. PW12 had further deposed that till the contraband articles reached the Court, it was in his custody. 17. PW4 was the thondi clerk attached to the Judicial First Class Magistrate Court, Kattakada. He deposed that on 25.07.1999, 174 cans involved in this case were produced in the Court along with the lorry. It was entered in page 72 of the Court register. The thondi list was marked as Ext.P2. The relevant page of the register of the Court was marked as Ext.P3. The original record was also produced at the time of examination of the above witnesses. According to the witness, after production of the lorry in Court, it was handed over for safe custody. Samples were drawn from the contraband as per the direction of the magistrate. The samples so drawn was forwarded to the FSL with a forwarding note, the copy of which was marked as Ext.P4. He had deposed that the cans which were produced in Court had been sealed and after drawing the sample, the cans were returned for safe custody. 18. PW12 in his evidence had deposed that the Judicial First Class magistrate had visited the excise office pursuant to the order dated 05.07.2005 and cans were verified. Thereafter, by Crl.Appeal.1969/11 12 Ext.P18, disposal order under Section 53A of the Abkari Act was issued. The contraband articles were ordered to be sold to Travancore Sugars evidenced by Exts.P19 and P20. 19. PW11 was the assistant chemical examiner, Thiruvananthapuram who deposed that the samples were received from Court on 03.08.1999. The certificate of chemical examination conducted was Ext.P6. The evidence of PW1 coupled with Ext.P6 indicates that in the samples number 1 to 174, spirit was detected. In samples 159 to 156 and 168, 174 spirit and organo phosphorous compound were detected. According to the report, organo phosphorous compound were commonly used as insecticides. 20. The evidence as disclosed above indicates that the contraband articles which were seized at the spot were sealed and reached the Court without any tampering. The samples were drawn under the authority of the Court and were duly forwarded. The samples reached the chemical analysis lab without any interpolation. Hence, it is clear that from the point of search and seizure, thereafter till its receipt in chemical analysis lab, there was no interpolation and there is nothing to doubt the genuineness of the process of sampling and analysis. Crl.Appeal.1969/11 13 21. As mentioned above, the offence against accused Nos.2 and 4 is sought to be established by the direct evidence of the eye witnesses regarding the presence of the accused in the lorry. On the other hand, the first accused is sought to be implicated as the owner of the vehicle in possession. Evidently, he is not the registered owner of the vehicle. According to PW12, at the time of the interception, vehicle was carrying a fake number as KL Y 730. According to the above witnesses, the actual vehicle number was KL B 7589. From the lorry, the number plates bearing number KL B 7589 were also recovered. This is seen recorded in Ext.P1 and also spoken by the witnesses to the search and seizure. PW12 further deposed that the first accused had disclosed at the time of search that the lorry belonged to the first accused and that, he himself was the owner of the contraband articles. He further disclosed that the first accused had purchased the spirit from Umasamudram. There is absolutely no evidence to show that the first accused was the owner in possession of the vehicle. It was further contended that no complexity can be attributed to the accused merely on the basis of the confession made by the co-accused. To buttress the above argument, learned counsel relied on the decision in **Sooraj v. Excise Inspector (2002(1)** Crl.Appeal.1969/11 14 **KLJ 739)** wherein it was held that if there was no allegation against the owner of the vehicle that he is involved directly or indirectly in transporting the liquor, he cannot be charged with the offence under Section 57A(iii) of the Abkari Act. It was contended that evidence of the prosecution is bereft of any materials to connect the first accused to the incident. There was nothing to show directly or indirectly that he was involved in the transportation. 22. The prosecution case is sought to be established not merely on the basis of the possession or ownership of the vehicle alone. According to the prosecution, the first accused is the person who purchased the spirit at Umasamudram and entrusted it to the second accused. He was the owner in possession of the vehicle who had entrusted it to the other accused for transporting illicit liquor. To contend that the first accused cannot be fastened with the liability on the basis of the confession made to the police officer, learned counsel relied on the decision of this Court in **Joseph v. State of Kerala (2010(1) KLT SN 16 (C.No.18)** . In that case, it was held that any confession made to an abkari officer after 03.06.1997 will be deemed to be a confession made to a police officer within the meaning of Section 25 and will stand 15 Crl.Appeal.1969/11 interdicted by that section. In the case at hand also, alleged confession is one on the basis of alleged confession to a police officer. However, it is pertinent to note that in the case at hand, the prosecution is not essentially relying on an alleged confession. It appears that the source and ownership of the above articles were disclosed by the second accused at the time of interception. This formed a part of Ext.P1 contemporaneous document. This fact alone is sought to be relied on by the prosecution and not as a confession made by the accused. 23. To establish that, the first accused was conscious and involved in the entire transaction, prosecution relied on other materials also. According to PW12, the vehicle was bearing a fake number. According to him, there was no lorry registered with registration number KL-Y-730. To prove that, the vehicle was one with a hazy number and the engine number mentioned in Ext.P1 and that registration number was KL-B-7589, the RC particulars are not forthcoming. Even though the prosecution has a case that PW12 had recovered copy of the RC book from the vehicle, it was not produced. The explanation offered by him was that it was only a photocopy and not the original. There was no explanation as to why the RC particulars were not produced, which would have been Crl.Appeal.1969/11 16 a more authentic document to confirm the identity of the vehicle. 24. However, PW12 deposed that the investigation revealed that the RC owner of the lorry was one Sajna Mathai. Ext.P14 was the copy notice issued to the RC owner to produce the vehicle. He replied to it by Ext.P15, informing that the above lorry was sold to one Mathai on 04.09.1998. It was revealed that thereafter the lorry was handed over to one Chandran. Hence, a notice was issued to Chandran, the copy of which was produced as Ext.P16. He replied by Ext.P17 informing that he had sold the vehicle to one Rajendraprasad on 22.05.1999. Ext.P12 is the copy of notice issued to the Rajendraprasad who by Ext.P13 reply admitted that he had purchased vehicle number KL-B-7589 from Chandran who had sold it to the first accused on 02.06.1999 25. The said Rajendraprasad was examined as PW3. However, he went to the extent of denying the entire prosecution case relying on Exts.P12 and P13. He went to the extent of saying that he had not purchased the vehicle, denied having sold it to the first accused and even the reply was denied. In the nature of evidence of Exts.P12 to P17 and all other attending circumstances, it appears that the prosecution case cannot be doubted. Evidently, PW3 had retracted from the evidence for reasons best known to Crl.Appeal.1969/11 17 him. In the above circumstance, though the RC particulars are not forthcoming, the factual physical possession of the vehicle during the relevant time can be attributed to the first accused. 26. Learned counsel for the petitioners vehemently opposed the prosecution case on the ground that there were serious flaws in the investigation and crucial materials were suppressed by prosecution. One of the contention of the learned counsel for the petitioner was that though the prosecution alleged that the vehicle had crossed the check post after causing damage to the check post, the original records kept in the check post were not produced to corroborate the oral testimony. The version of PW6 is to the effect that the vehicle was taken away while peon Balachandran Nair was on the top of the vehicle, conducting inspection. He also admitted that the check post was maintaining the GD. The entries were made in the GD regarding the passage of the above lorry. However, the above records were conspicuously not produced nor Balachandran Nair examined. According to the learned counsel for the petitioners, both were crucial materials and nonavailability of it at the time of examination cast serious doubt on the version of prosecution as deposed by PW6. Crl.Appeal.1969/11 18 27. It is true that production of GD would have further corroborated the version of PW6. Further, Balachandran Nair would have been a competent and crucial witness to prove the first limb of the allegation against the accused. However, that does not by itself undermine the oral evidence of PW6, coupled with the sequence of evidence narrated by PW6. However, the facts that Balachandran Nair would have deposed were exactly the same as deposed by PW6. 28. Another limb of argument of learned counsel for the petitioners was that though there is a specific allegation that the barricade was damaged, that they interfered in the discharge of the lawful functioning of the government officials and that, a forged number plate was exhibited, no crime was registered with respect to the each of the above independent crimes. It is true that in the course of transportation of illicit spirit, the accused had allegedly committed several other offences also. No separate crime has been registered nor the above offences incorporated in the present crime. However, that by itself did not demolish the credibility of the eye witnesses with respect to the remaining allegations. Crl.Appeal.1969/11 19 29. Another limb of the argument of the learned counsel for the petitioners was that the detecting officer himself was the investigating officer. It is true that the substantial part of the investigation was over with the search and seizure. Hence, the continued investigation by PW12 will not in any manner affect the credibility of the witnesses. 30. It was contended that though PW7 deposed that he had seen the vehicle with some cans unloaded, the other witnesses did not support this version. According to PW12, all the cans were unloaded and thereafter, the mahazar was prepared. They were reloaded thereafter. I do not feel that this is any material contradiction to doubt the entire version. According to the counsel, some of the witnesses have deposed that the police party intercepted the vehicle, thereafter, it was stopped and the accused ran away from the spot. On the other hand, the version of some other witnesses is to the effect that they have seen the vehicle parked at one place and when the police party approached the vehicle, the occupants ran away from the spot. 31. Learned counsel relied on the decision in **Cherian v. State of Kerala (2013(3) KHC 179)** and vehemently contended that merely because rectified spirit was recovered, it does not fall Crl.Appeal.1969/11 20 within the provision of the Abkari Act especially one under Section 55(a) of the Act. It was contended that there must be further evidence by the prosecution that it was spirit. In the nature of scientific and expert evidence to prove that the contraband seized was of a particular kind of liquor and that it conforms to the above type of liquor referred to in the Act and rules, only then an offence under the Act can be made out. The facts reveal that items recovered, as confirmed from the chemical or scientific analysis report indicates that it was one which was prohibited under Kerala Abkari Act. 32. Having regard to the above materials on record, it is clear that the prosecution has specifically proved that the contraband articles were purchased by the first accused and transported by him with the assistance of accused 2 and 4. The presence of accused 2 and 4 in the vehicle till apprehension of the second accused is established by cogent evidence. There is also evidence to show that the second accused was actively involved in the transportation of illicit spirit. The allegation against the accused is very serious not only of transporting huge quantity of spirit illicitly but also of ramming the check post which was intended for restricting such illegal activities. The conduct of Crl.Appeal.1969/11 21 accused cannot be lightly seen in the above circumstances and any punishment imposed on him should have an element of deterrance also. 33. Having regard to these facts, I feel that substantive sentence of three years rigorous imprisonment with a fine of Rs.1,00,000/- imposed by the court below is not on the higher side. In the circumstance, I find no merit in the appeal. The appeal fails and is dismissed confirming the conviction and sentence. Bail bond is cancelled. Accused shall surrender before trial court to undergo remaining part of sentence. Sd/- **SUNIL THOMAS Judge** Sbna True Copy P A to Judge