K. Bhaskaran v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE SOPHY THOMAS`** ``` WEDNESDAY, THE 29[TH] DAY OF NOVEMBER 2023 / 8TH AGRAHAYANA, 1945 ``` ``` CRL.REV.PET NO. 869 OF 2016 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 370/2010 OF ASSISTANT SESSIONS COURT, HOSDURG ``` ``` AGAINST THE ORDER/JUDGMENT IN CRA 42/2015 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - III, KASARAGOD ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` K.BHASKARAN AGED 56 YEARS S/O.KARUTHAMBU, RESIDING AT NAIRKADAVU DESAM, P.O.BALAL, BALAL VILLAGE, VELLARIKUNDU TALUK. BY ADVS. SRI.PHILIP T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.CHITHRA CHANDRASEKHARAN SMT.K.R.MONISHA SRI.THOMAS T.VARGHESE ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR, NILESHWAR EXCISE RANGE REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM 682 035. ``` ``` SRI. MANU MAMALASSERY – SR.PP ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 869 OF 2016 ``` **==> picture [37 x 9] intentionally omitted <==** ## **ORDER** This revision is at the instance of the 1[st] accused in S.C. No.370 of 2010 on the file of Assistant Sessions Judge, Hosdurg, assailing the judgment in Crl.Appeal No.42 of 2015 on the file of Additional District and Sessions Judge-III, Kasaragod, which upheld his conviction under Sections 8(1) and 8(2) of the Abkari Act, though the sentence was modified and reduced to certain extent. 2. The prosecution case is that, on 12.02.2008 at about 2.00 p.m., PW1, the Preventive Officer attached to the Excise Enforcement and Anti Narcotic Special Squad, while doing patrol duty, found the revision petitioner carrying a 10 litre can containing 10 litres of illicit arrack near house No.II/374 in Balal Panchayat. The revision petitioner was arrested and the contraband was seized. 3. After completing the legal formalities, the revision petitioner along with the contraband seized and the records ``` CRL.REV.PET NO. 869 OF 2016 ``` **==> picture [37 x 9] intentionally omitted <==** prepared, were produced before the excise range office, where crime and occurrence report was registered against him. On completing the investigation, charge sheet was laid against the revision petitioner under Sections 8(1) and 8(2) of the Abkari Act. 4. On appearance of the revision petitioner before the trial court, charge was framed under Sections 8(1) and 8(2) of the Abkari Act, read over and explained, to which, he pleaded not guilty and claimed to be tried. PWs.1 to 6 were examined, and Exts.P1 to P13 were marked from the side of prosecution, to prove its case. 5. On closure of prosecution evidence, the revision petitioner was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record. But no defence evidence was adduced. 6. On analyzing the facts and evidence, and on hearing the rival contentions from either side, the trial court found the revision petitioner guilty under Sections 8(1) and ``` CRL.REV.PET NO. 869 OF 2016 ``` **==> picture [37 x 9] intentionally omitted <==** 8(2) of the Abkari Act, and he was convicted and sentenced to undergo rigorous imprisonment for two years and fine of Rs.1 lakh, with a default sentence of rigorous imprisonment for a further period of six months. 7. Aggrieved by the conviction and sentence imposed by the trial court, the revision petitioner preferred Crl.Appeal No.42 of 2015. The appellate court, on re-appreciating the facts and evidence, allowed the appeal only in part, against which he has preferred this revision. 8. Now this Court is called upon to verify the legality, propriety and correctness of the impugned judgments of the trial court as well as the appellate court, convicting and sentencing the revision petitioner under Sections 8(1) and 8(2) of the Abkari Act. 9. Heard learned counsel for the revision petitioner and learned Public Prosecutor. 10. On going through the concurrent findings of conviction by the trial court as well as the appellate court, it ``` CRL.REV.PET NO. 869 OF 2016 ``` **==> picture [37 x 9] intentionally omitted <==** could be seen that, all the procedural formalities were strictly complied with, by the officer concerned in detecting the crime and making the arrest and seizure. PW1-the detecting officer, and PW2, a preventive officer in the squad, gave testimony fully corroborating the prosecution case. Ext.P2 seizure mahazar contains the specimen impression of the seal and Ext.P1 arrest memo shows the arrest of the revision petitioner at the scene of occurrence itself. It is true that, PWs.3 and 4, the independent witnesses, did not support the prosecution case fully, though they admitted that, the excise officials obtained their signature. PW4 admitted his signature in Ext.P1 arrest memo as well as in Ext.P2 seizure mahazar. The forwarding note contains specimen impression of the seal and also the name of the excise guard with whom the sample was sent to the chemical examiner’s lab. The seized contraband was produced before the excise office as well as before the jurisdictional Magistrate court on the date of detection itself. ``` CRL.REV.PET NO. 869 OF 2016 ``` **==> picture [37 x 9] intentionally omitted <==** Ext.P7 copy of forwarding note shows that, the sample was forwarded to the chemical examiner’s lab on 26.02.2008 and no delay was involved in sending the sample to the chemical examiner’s lab. Ext.P13 chemical analysis report was issued on 29.07.2008, i.e., just within five months of seizure of the sample. There was evidence to show tamper proof despatch of the sample, and the chemical analysis report shows that the sample contained ethyl alcohol. The testimony of PWs.1 and 2 was found reliable and trustworthy by the trial court, as well as the appellate court. 11. Learned counsel for the revision petitioner would submit that, since the independent witnesses did not support the prosecution case, it is not safe to rely on the testimony of the official witnesses alone, to find the revision petitioner guilty of the offences alleged. Hostility of the independent witnesses is not a ground to disbelieve the testimony of the official witnesses, if it is found reliable and trustworthy. ``` CRL.REV.PET NO. 869 OF 2016 ``` **==> picture [37 x 9] intentionally omitted <==** 12. In **Abdul Rasheed v. State of Kerala** [2008 (3) KLT 150], and in **Vikraman v. State of Kerala** [2007 (1) KLT 1010] this Court held that, when the testimony of the official witnesses is blemishless and free from suspicion and inspiring confidence of the court, the hostility shown by illmotivated independent witnesses is of no consequence. 13. In the case on hand, though PWs.3 and 4, the independent witnesses, turned hostile to the prosecution, PW4 admitted his signature in the seizure mahazar, and arrest memo. PW3 also admitted that excise officials had obtained his signature. Simply because, the independent witnesses turned hostile after admitting their signature in the seizure mahazar, the entire arrest and seizure will not get vitiated. (See **Balachandran v. State of Kerala** [2020 (4) KLT 137]. 14. The testimony of PWs.1 and 2 is reliable and trustworthy, and hence hostility shown by the independent witnesses doesn’t matter much. The contention of the ``` CRL.REV.PET NO. 869 OF 2016 ``` **==> picture [37 x 9] intentionally omitted <==** learned counsel for the revision petitioner that, since the independent witnesses turned hostile to the prosecution, the testimony of official witnesses cannot be relied upon, is therefore liable to be rejected. 15. Another contention taken up by learned counsel for the revision petitioner is that, though the occurrence was on 12.02.2008, final report was filed only on 15.02.2010 with a delay of around two years. According to him, since the prosecution failed to explain that delay, it is fatal, and so, the conviction and sentence based on a delayed final report cannot sustain. As we have seen, this is a case where all the procedural formalities were complied with, by the prosecution in an accurate and blemishless manner. The testimony of PWs.1 and 2 is reliable and trustworthy and nothing is there to disbelieve their testimony. The occurrence was on 12.02.2008, and the sample was anlaysed and the report was issued on 29.07.2008, and the final report was filed on 15.02.2010. ``` CRL.REV.PET NO. 869 OF 2016 ``` **==> picture [37 x 9] intentionally omitted <==** 16. In **Ranbir and Others v. State of Punjab** , 1973 KHC 590 : (1973) 2 SCC 444, Hon’ble Supreme Court held that “The delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a got up witness to falsely support the prosecution case”. This position has been reiterated by the Apex Court in **Ganesh Bhavan Patel v. State of Maharashtra** , 1978 KHC 637 : AIR 1979 SC 135 in the following words: “Delay may not, by itself, amount to serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye witnesses to be introduced”. It added: if the circumstances of the case lead to “the conclusion that the prosecution story was conceived and constructed after a good deal of deliberation and delay in a shady setting, ``` CRL.REV.PET NO. 869 OF 2016 ``` **==> picture [44 x 9] intentionally omitted <==** highly redolent of doubt and suspicion”, it is fatal. 17. Adverting to the facts and circumstances in the case on hand, this Court is of the view that, no prejudice is caused or failure of justice occurred for the revision petitioner, by filing the final report on 15.02.2010. The delay occurred was also not unreasonable, or inordinate, so as to cause miscarriage of justice. The appellate court also rightly appreciated that fact, and found that, no prejudice was caused to the revision petitioner. So, this Court finds no reason to interfere with the impugned judgment of conviction and sentence imposed by the appellate court in Crl.Appeal No.42 of 2015. 18. Learned counsel for the revision petitioner submitted that, the incident occurred 15 years ago, and now the revision petitioner has become a senior citizen. So, a lenient view may be taken in the matter of sentence. 19. Considering that aspect, this Court is inclined to modify and reduce the sentence imposed by the appellate ``` CRL.REV.PET NO. 869 OF 2016 ``` **==> picture [44 x 9] intentionally omitted <==** court as simple imprisonment for four months and fine of Rs.1 lakh with a default sentence of simple imprisonment for two months. 20. In the result, this revision is allowed in part by reducing the sentence as simple imprisonment for four months and fine of Rs.1 lakh, with a default sentence of simple imprisonment for two months while upholding the conviction under Sections 8(1) and 8(2) of the Abkari Act. Set off is allowed for the period undergone in custody during the period of trial. Registry of this Court is directed to transmit the case records forthwith to the trial court, for executing the sentence without delay. Sd/- ## **SOPHY THOMAS** **JUDGE** LU