Jayaram Nonda v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN WEDNESDAY, THE 8TH DAY OF AUGUST, 2012/17TH SRAVANA, 1934 CRL.A.No. 1326 of 2011 ---------------------[AGAINST THE ORDER DTD. 2.7.2011 IN SC.164/2008 of THE COURT OF SESSION, KASARAGOD DIVISION (ADDL.DISTRICT AND SESSIONS COURT (ADHOC)I, KASARAGOD) APPELLANT(S)/ACCUSED: -------------------JAYARAM NONDA, AGED 36/11 YEARS, S/O.NARAYANA NONDA, PAIVALIGE, PAIVALIGE GRAMAM PAIVALIGE PANCHAYATH VI-326. BY ADV. SRI.K.P.HARISH RESPONDENT(S)/COMPLAINANT: -------------------------- STATE OF KERALA REP. BY THE S.H.O.KUMBLA POLICE STATION WHO IS REPRESENTED BEFORE THIS HON'BLE COURT BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.M.SANEER. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** **---------------------------------------Crl.A.No.1326 of 2011 ----------------------------------------** Dated this the 8[th] day of August, 2012 ## JUDGMENT The appellant is the sole accused in S.C.No.164 of 2008. In this appeal, he challenges his conviction and sentence under Section 8(2) of the Abkari Act imposed by the judgment dated 2.7.2011 in S.C.No.164 of 2008 of the court of Sessions, Kasaragod Division (Additional District and Sessions Court (Ad Hoc)-I, Kasaragod. 2. The case of the prosecution is that at about 3 p.m. on 18.10.2005, the accused was found transporting 5100 packets of arrack each having capacity of 100 ml. and thus, a total quantity of 510 litres of arrack from Karnataka to Kerala in a maruthi car bearing Registration No.CKQ-3518 through the road at Mukharikandam in Edanadu Village. On the basis of the above allegation, crime No.281 of 2005 was registered in the Kumbla Police Station for the offence punishable under Section 8(2) of the ## **Crl.A.No.1326 of 2011** ## **:-2-:** Kerala Abkari Act and on completing the investigation, the Police has preferred a report in the Judicial First Class Magistrate CourtI, Kasaragod based upon which C.P.No.147 of 2007 was instituted and finally, the learned Magistrate, by his order dated 29.1.2008 committed the case to the Sessions Court wherein S.C.No.164 of 2008 was instituted and subsequently, the case is made over to the present trial court for disposal. 3. When the accused appeared, after hearing the prosecution as well as the defence, a formal charge was framed for the offence punishable under Section 8(2) of the Abkari Act and the accused denied the charge when the same was read over and explained to the accused and consequently, the prosecution adduced its evidence by examining Pws.1 to 5 and producing Exts.P1 to P9 documents. No evidence either oral or documentary was produced from the side of the defence. Finally, the trial court has held that the prosecution has satisfactorily proved its case that the accused has transported 5100, 100 ml. packets of arrack, which is ## **Crl.A.No.1326 of 2011** ## **:-3-:** prohibited for consumption and sale in Kerala and thus, Section 8 (2) of the Kerala Abkari Act is established against the accused. Accordingly, the accused is found guilty and convicted under Section 8(2) of the Kerala Abkari Act and on such conviction, he is sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.1 lakh and in default, he is sentenced to undergo rigorous imprisonment for one year. Set off is allowed under Section 428 of the Cr.P.C. It is the above finding and conviction challenged in this appeal. 4. The prosecution to buttress its allegation, against the accused, mainly depends upon the testimony of Pws.1 and 2 and Exts.P1 to P9 documents. When Pws.1 and 2 were examined, they have deposed that while PW1 and party were engaged in the vehicle checking at the place of occurrence as described in Ext.P8, PW1 saw a white coloured Maruthi car coming from Perla side and on seeing the car, he had given hand signal to stop the car, but ignoring the same, the driver took the car and therefore, PW1 and ## **Crl.A.No.1326 of 2011** ## **:-4-:** party in the police jeep chased the car and the car had gone further which hit against the rock on the left side of the road and thereafter, the person, who was driving the vehicle, jumped out of the car and further jumped into a pit. According to Pws.1 and 2, after the driver of the jeep was posted near the car, PW1 and party chased the accused and he was taken into custody and brought near the car. According to Pws.1 and 2, though he was asked about the goods in the car, he failed to give any proper answer. Thus, according to Pws.1 and 2, as the person, who was taken into custody, failed to give proper explanation and reply, they proceeded to inspect the car in the presence of independent witnesses available there and thus, they have found sacks which contain the arrack packets, each having capacity of 100 ml. According to Pws.1 and 2, they have opened one packet and on tasting and smelling the same, they realised the content as arrack. Thus, according to Pws.1 and 2, the accused was arrested as per Ext.P1 arrest memo and Ext.P2 inspection memo. Pws.1 and 2 ## **Crl.A.No.1326 of 2011** **:-5-:** had also deposed that altogether, there were 17 sacks and each sack contained 300 packets and thus, they have detected 5100 packets. Pws.1 and 2 also stated that besides the one packet, which opened firstly, five more packets were opened and drawn samples of 300 mls. in two separate bottles each having the capacity of 375 ml. According to these witnesses, they have affixed the seal of the Station House Officer and on the bottle, the accused as well as the witnesses and PW1 have affixed their signature and marked the sample bottles as S1 and S2. According to PW1, the remnants, after drawing the samples, were taken in 16 sacks and in each sack, 300 packets were filled and sealed. Those sacks were marked as Exts.P1 to P16. He had also deposed that in one packet, there were only 294 packets and those sacks were also sealed and numbered as Ext.P17. PW1 has also deposed that the empty plastic packets and the vehicle which is used by the accused for transporting were taken into custody as per the seizure mahazar. The said seizure mahazar is marked as Ext.P3. ## **Crl.A.No.1326 of 2011** ## **:-6-:** According to PW1 by 17.30 p.m., they reached the station and crime No.281 of 2005 was registered against the accused as per Ext.P4 FIR. He had also deposed that the properties were described in the property list prepared by him which is marked as Ext.P5 and the same has been produced before the court. He had also deposed that by preparing Ext.P6 forwarding note, the samples were requested to send to the Forensic Lab for chemical analysis report. According to PW1, the remnants, after drawing the samples were sent to the Assistant Excise Commissioner, by preparing an inventory. Ext.P7 is the inventory and Ext.P7(a) is the photograph of the remnants sent to the concerned Excise Commissioner and its negative is marked as Ext.P7(b). PW1 has also deposed that he had prepared Ext.P8 scene mahazar at about 10 a.m. on the next day and had recorded the statement of witnesses 2 to 8. It is his further deposition before the court that as the accused sustained the injuries, treatment was given to him in the Kumbla Community Health Centre and thereafter, he was ## **Crl.A.No.1326 of 2011** ## **:-7-:** produced before the court and accordingly, he is remanded. Ext.P9 chemical analysis report is also marked through him. When PW1 was examined, he had also deposed in terms of the deposition of PW1. 5. When Pws.3 and 4, who are independent witnesses, were examined, and who signed Exts.P1 and P3 seizure mahazars, they turned hostile towards the prosecution. PW5 is another witness to Ext.P8 scene mahzar. These are the evidence and materials referred to and relied on by the learned Sessions Judge in support of his finding and convicting the appellant. 6. Learned counsel for the appellant vehemently submitted that the prosecution has miserably failed to prove the case against the appellant beyond reasonable doubt. Thus, according to the learned counsel, there is no fool proof evidence to support the allegation of prosecution against the appellant and the trial court has erroneously found that the prosecution has proved the case against the appellant. In order to substantiate the above ## **Crl.A.No.1326 of 2011** ## **:-8-:** contention, it is pointed out by the learned counsel for the appellant that though the incident has taken place at 3 p.m. on 18.10.2005, the property produced before the court as per Ext.P5 reached only on 19.10.2005 and there is delay, which is not properly explained by the prosecution. It is also the submission of the learned counsel, on the strength of the decision of this Court reported in **Ravi** v. **State of Kerala** (2011(3) KLT 353) that the samples reached in the chemical analysis laboratory are not the same allegedly drawn from the property alleged to have seized from the possession of the appellant. In support of the above submission, it is pointed out that according to Ext.P9 chemical analysis report, what they received was only samples 1 and 2 whereas as per Ext.P3, PW1 has drawn samples as per S1 and S2. It is also the submission of the learned counsel that the prosecution has not conducted any proper investigation and the owner of the vehicle was not traced. It is also the submission of the learned counsel that absolutely, there is no evidence to show as to who ## **Crl.A.No.1326 of 2011** ## **:-9-:** was the custodian of the property allegedly seized by PW1 till the same is produced before the court. 7. On the other hand, the learned Public Prosecutor submitted that the evidence of Pws.1 and 2 established the fact that the contraband articles were seized from the possession of the accused. It is the further submission of the learned Public Prosecutor that Ext.P3 seizure mahazar and the samples drawn as per Ext.P3 were produced before the court as per Ext.P5 property list. According to the Public Prosecutor, it was from the court, the samples were sent to the chemical analysis laboratory from where Ext.P9 report was obtained. According to the learned Public Prosecutor, the defence has miserably failed to establish that the samples were tampered, especially when the samples for chemical analysis send from the court. According to him, even though Ext.P9 contains the samples recorded in Ext.P3 as 1 and 2, it will not affect the credibility of the prosecution allegation. Thus, according to the learned Public Prosecutor, no interference is **Crl.A.No.1326 of 2011** ## **:-10-:** warranted. 8. I have carefully considered the submission made by the learned counsel for the appellant and the learned Public Prosecutor and I have perused the judgment of the trial court as well as the evidence and materials on record. 9. In the light of the rival contentions of the counsel for the appellant and the learned Public Prosecutor and in the light of the evidence and materials on record, the question to be considered is whether the trial court is justified in its finding in convicting the appellant for the offence punishable under Section 8(2) of the Abkari Act. 10. The crux of the prosecution allegation is that the accused was found transporting 510 litres of Karnataka made arrack in a white maruti car bearing Regn.No. CKQ 3518 and the same was seized by Pws.1 and 2 and the parties at about 3 p.m. on 18.10.2005. As I indicated earlier, to substantiate the above allegation, the prosecution has examined Pws.1 and 2 and also ## **Crl.A.No.1326 of 2011** **:-11-:** Pws.3 to 5. I have already verified the depositions of Pws.1 and 2 and when they were examined, they have deposed strictly in accordance with the prosecution allegation. There was no effective cross-examination to discredit the version of Pws.1 and 2. Going by the cross-examination of Pws.1 and 2, it can be seen that the defence has miserably failed to extract anything in support of the argument advanced by the counsel for the appellant before this Court. The only discrepancy pointed out by the counsel for the appellant is that in Ext.P9 chemical analysis report, it is mentioned that they have received two sealed 375 ml. bottles marked as 1 and 2 in the laboratory involved in crime No.281/2005 of the Kumbla Police Station from the Judicial First Class Magistrate Court, Kasaragod. It is true that in Ext.P9, there is no reference as S1 or S2. In this juncture, it is relevant to note that the said fact is not put to PW1 and no explanation is sought from him. According to me, the omission from the part of the chemical analyst in showing the sample bottles as S1 and S2 will ## **Crl.A.No.1326 of 2011** **:-12-:** in no way help the defence. In Ext.P9, the chemical analyst has already reported that the seals on the bottles are intact and found tallied with the sample seal provided. It is also relevant to note that the samples received by them are the samples involved in Crime No. 281/2005 of the Kumbla Police Station in which the accused is involved. It is also pertinent to note that the samples were received by the chemical analyst from the Judicial First Class Magistrate Court, Kasaragod. If that be so, in the absence of any material or evidence against the prosecution and in favour of the defence, I find no reason to accept the argument advanced by counsel for the appellant on the basis that the analyst failed to mention S1 and S2 in the said report. It is true that though the date of occurrence was on 18.10.2005, the samples were produced before the court on 20.10.2005 in Ext.P5 property list. But, when PW1 was examined, he had deposed before the court that the properties were in his safe custody. So, having regard to the facts and circumstances of the case, according to me, the two days delay ## **Crl.A.No.1326 of 2011** **:-13-:** in reaching the property before the court has not resulted in any prejudice to the accused. It can be seen that as per the evidence of PW1, though the incident was on 18.10.2005, at 10 a.m. on 19.10.2005, he undertook the investigation and accordingly, he prepared Ext.P8 scene mahazar on the next day i.e., on 19.10.2005. It is thereafter, the property list was prepared on 19.10.2005, to send it to the court. Therefore, according to me, though the delay is not properly explained by PW1, the facts shown above justify the belated receipt of Ext.P5 by the learned Magistrate. 11. It is true that the prosecution has not conducted any investigation to trace out the owner of the vehicle in question. But, according to me, the above failure is not a ground to disbelieve the case of the prosecution and to acquit the accused since it was from the physical possession of the appellant, the contraband articles were seized and it was the accused, who drove the vehicle at the time of the incident and the contraband articles ## **Crl.A.No.1326 of 2011** ## **:-14-:** were seized from the said car. It is also relevant to note that the appellant has been involved in previous crime of similar nature and therefore, in the absence of any serious lapse or lack of evidence, I find no reason, especially in the light of the facts and circumstances and the evidence referred to above, to interfere with the findings of the court below. Thus, according to me, the learned Judge of the trial court is justified in his finding and convicting the appellant for the offence under Section 8(2) of the Abkari Act and accordingly, I confirm the conviction recorded by the trial court against the appellant. 12. Learned counsel for the appellant submitted that a lenient view may be taken in the matter of sentence since there is nobody to look after his family. From the available materials, it appears that the appellant was at the age of 30 when the alleged incident has taken place and thereafter, seven years are over. From the judgment of the trial court, it appears that his plea was to the effect that he is the only person to look after his family. The **Crl.A.No.1326 of 2011** **==> picture [29 x 9] intentionally omitted <==** offence now proved against the accused is a very serious one and it is also beyond dispute that the appellant has been involved in similar offence on previous occasion. 13. Having regard to the facts and circumstances involved in the case and in the light of the above mitigating circumstances, according to me, two years rigorous imprisonment will be sufficient to meet the ends of justice. While retaining the sentence of fine, the default sentence can be reduced into six months rigorous imprisonment. Thus, accordingly, while confirming the conviction of the appellant under Section 8(2) of the Abkari Act, the accused is sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.1 lakh and in default, he is directed to undergo rigorous imprisonment for six months. Set off is allowed under Section 428 of the Cr.P.C. In the result, this Criminal Appeal is dismissed confirming the conviction of the appellant under Section 8(2) of the Abkari Act, but subject to modification with respect to the ## **Crl.A.No.1326 of 2011** ## **:-16-:** sentence to the extent indicated above. In the light of the modification with respect to the sentence, as indicated above, according to me, the appellant is entitled to get released from jail if he is not required in any other case and therefore, the Registry is directed to forward a gist of this judgment to the Superintendent of Central Prison, Kannur for appropriate action. **V.K.MOHANAN, Judge** MBS/ ## **Crl.A.No.1326 of 2011** **:-17-:**