K. Krishnan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 18TH DAY OF JANUARY 2012/28TH POUSHA 1933 CRA.No. 1935 of 2003 ( ) -----------------------SC.263/2000 of ADDL.SESSN.COURT (ADHOC-II)KASARAGODE APPELLANT(S): -----------K. KRISHNAN, S/O. KORAGA VELICHAPPADU, KUNDALA, ADHUR VILLAGE BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENT(S): -------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (THROUGH SHO, ADHUR POLICE STATION) BY PUBLIC PROSECUTOR SRI. SREEJITH. V.S. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: smvD ## **N.K. BALAKRISHNAN,J. -----------------------------------Crl. Appeal No. 1935 of 2003 -----------------------------------------Dated this the 18[th] day of January, 2012** ## **JUDGMENT** Appellant was convicted by Additional Sessions Judge (Ad Hoc) - II, Kasaragod for offence punishable under Section 55(a) of Abkari Act. 2. The case of the prosecution is that on 07.10.99, when PW.1 - the S.I. of Police, Adhur was conducting patrol duty, at about 07.50 P.M., a reliable information was received that the accused was engaged in sale of arrack at Kundala. Hence, he and his police party proceeded to that place. The accused was found on the back side of the residential building of the accused carrying a black can of 5 litres capacity which contained 5 litres of arrack. The liquid was identified to be arrack. The accused was thus arrested. The contraband articles were seized. Two sample bottles of 375ml each were taken. These sample bottles were sealed and labelled in the presence of the accused and the witnesses. All those properties were seized as per Ext.P2 seizure mahazar. The arrest memo, Ext.P1 was also ## **Crl. Appeal No. 1935 of 2003 -: 2 :-** prepared then and there. The accused and the contraband articles were produced before the learned Magistrate on the next day i.e. 08.10.99. The investigation was conducted by PW.1 himself and charge sheet was laid against the accused. PW.1 to PW.2 were examined and Exts.P1 to P7 were marked. Ext.D1, the copy of the FIR in Crime No.102/02 of that police station was marked. Besides MO.1, the black can which contained arrack was also marked. The Additional Sessions Judge accepted the evidence given by PW.1, the S.I. of police. Though PW.2, the independent witness did not support the prosecution, accepting the evidence of PW.1, the Court below found the accused guilty. 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. The learned counsel for the appellant would submit that this case was foisted by one Narayanan who had serious grouse against the accused for which Ext.D1, the copy of the FIR has been relied upon by the ## **Crl. Appeal No. 1935 of 2003 -: 3 :-** appellant. Ext.D1 would show that there was a criminal case registered under Section 324 IPC. It is seen from Ext.D1, that the appellant herein actually attacked Narayanan mentioned above, alleging that the aforesaid Narayanan was responsible for registering the case against the accused under the Abkari Act. That will not in any way improve the case of the appellant since the incident referred to in Ext.D1 was took place subsequent to the detection of the case. 3. The other ground that has been strenuously pressed into service by the learned counsel for the appellant is that there is only the interested testimony of PW.1, the S.I. himself. PW.2, the independent witness did not support the prosecution. No other evidence was adduced to prove the prosecution case. It is argued that the case was taken by PW.1 himself and the case was investigated and the charge sheet was also laid by him and so the correctness of the statement given by PW.1 could not be cross-checked by any ## **Crl. Appeal No. 1935 of 2003 -: 4 :-** superior officer or by any other officer and as such the court below should not have accepted the evidence given by PW.1. The fact that PW.1 himself detected the case and charge sheet was laid is no reason to hold that the whole prosecution or trial is vitiated. Following the decisions of the Apex fCourt in **Megha Singh vs. State of Haryana** (AIR 1995 SC 2339) and **State vs. V. Jayapaul** reported in (2004 (5) SCC 232), it was held by this court in **Biju @ Sasi vs. State of Kerala** 2011(4) KLJ 76 that as the accused could not point out any circumstance by which the investigation caused prejudice to the accused only because the officer who detected the case himself investigated and laid the charge sheet, it will not in any way be a reason to hold that the conviction is vitiated. 4. It is also argued by the learned counsel for the appellant that though the case was stated to have been detected on 07.10.'99, the properties actually reached the court only on 12.10.'99. Ext.P5, the property list shows that ## **Crl. Appeal No. 1935 of 2003 -: 5 :-** the property list was actually prepared on 08.10.'99. The fact that the sample bottles were sealed and labelled was specifically mentioned in Ext.P5. The further fact that the sample bottles reached the court in a sealed condition is seen certified in Ext.P7, the report of the chemical examiner. It was certified that the sample of liquid contained 22.43% by volume of ethyl alcohol. Though the properties actually reached the court on 12.10.99, there is evidence to show that the seizure mahazar, the arrest memo and other records reached the court on 08.10.99 itself. Therefore, it can be found that the seizure was promptly reported to the court. As such the contention that there was delay in producing of the property and so on that ground the accused is not entitled to be acquitted cannot be sustained. 5. It is true that no other police constable was examined to support the evidence given by PW.1. The evidence is to be weighed and not counted. What is germane for ## **Crl. Appeal No. 1935 of 2003 -: 6 :-** consideration is whether the single testimony of PW.1 inspires confidence in the minds of the court. The court below had the opportunity to assess the evidence correctly. Though the learned counsel for the appellant has argued at length stating that the evidence is unacceptable, I find no reason to accept the same. The upshot to my discussion is that, the court below has rightly found that the accused/appellant was carrying 5 litres of arrack in MO.1, the black can which was found to be arrack. Hence, the conviction of the appellant for the offence punishable under Section 55(a) of the Abkari Act is only to be confirmed. 6. The learned counsel for the appellant submits that the appellant is the sole bread winner of the family and if he is sent to jail for a longer period, his family members will be put to destitution. It is also submitted that he is suffering from various ailments. 7. Considering all the aspects, I find that the substantive sentence imposed by the court below can be **Crl. Appeal No. 1935 of 2003 -: 7 :-** reduced to SI for two months while maintaining the sentence regarding fine and default sentence. In the result, this Criminal Appeal is allowed in part. While maintaining the sentence regarding fine and default sentence, the substantive sentence is reduced to S.I. for two months. The period of detention, if any, undergone by him shall be set off. ## **N.K. BALAKRISHNAN, JUDGE** //True copy// P.A. To Judge smvd