K. P. Mohanan v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE SOPHY THOMAS`** ``` MONDAY, THE 27[TH] DAY OF NOVEMBER 2023 / 6TH AGRAHAYANA, 1945 ``` ``` CRL.REV.PET NO. 254 OF 2016 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 1331/2014 OF III ADDITIONAL ``` ``` ASSISTANT SESSIONS COURT, KOZHIKODE ``` ``` AGAINST THE ORDER/JUDGMENT IN CRA 442/2015 OF ADDITIONAL DISTRICT COURT (SPECIAL COURT FOR TRIAL FOR MARADU CASES) KOZHIKODE ``` ## **`REVISION PETITIONER/APPELLANT/1ST ACCUSED:`** ``` K.P.MOHANAN AGED 55 YEARS S/O.IMBICHI, MANNARAMKUNNU HOUSE, KURUVATTUR, CHERUVATTA, KOZHIKODE. BY ADV SRI.T.G.RAJENDRAN ``` ## **`RESPONDENTS/RESPONDENTS/COMPLAINANT:`** ``` 1THE EXCISE INSPECTOR CHELANNUR, KOZHIKODE - 673 616. 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. ``` ``` SRI RENJIT GEORGE – SR.PP ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 254 OF 2016 ``` ``` 2 ``` ## **ORDER** This revision is at the instance of the 1[st] accused in S.C. No.1331 of 2014 on the file of III[rd] Additional Assistant Sessions Judge, Kozhikode, assailing the judgment in Crl.Appeal No.442 of 2015 on the file of Special Additional Sessions Judge (Marad Cases), Kozhikode, which upheld his conviction and sentence under Sections 8(1) and 8(2) of the Abkari Act. 2. The prosecution case is that, on 03.06.2014 at about 7.30 p.m., the revision petitioner along with the 2[nd] accused were found possessing and transporting 30 litres of illicit arrack in three plastic cans, in an autorickshaw bearing Registration No.KL-11-X-799, driven by the revision petitioner, through Parambil Bazar-Mallisserry Thazham Road in Kuruvattoor Amsom Desom in Kozhikode Taluk. PW1-the Assistant Excise Inspector attached to the Excise Enforcement and Anti Narcotic Special Squad, Kozhikode, and party detected the offence. The revision petitioner and the 2[nd] accused were arrested and the contraband was seized. ``` CRL.REV.PET NO. 254 OF 2016 ``` ``` 3 ``` 3. After completing the legal formalities, the accused persons along with the contraband seized were produced before the excise office and a crime was registered against them. PW8-the Excise Inspector, Chelannur, investigated the case, and laid charge sheet against them under Sections 8(1) and 8(2) of the Abkari Act. 4. On appearance of the accused persons before the trial court, charge was framed under Sections 8(1) and 8(2) of the Abkari Act, read over and explained, to which, they pleaded not guilty and claimed to be tried. PWs.1 to 8 were examined, Exts.P1 to P10 were marked and MOs.1 to 5 were identified from the side of prosecution, to prove its case. 5. On closure of prosecution evidence, the accused persons were questioned under Section 313 of Cr.P.C., and they denied all the incriminating circumstances brought on record. Ext. D1 was marked, from the defence side. 6. On analyzing the facts and evidence, and on hearing the rival contentions from either side, the trial court found both accused guilty under Sections 8(1) and 8(2) of the ``` CRL.REV.PET NO. 254 OF 2016 ``` ``` 4 ``` Abkari Act, and they were convicted and sentenced to undergo simple imprisonment for a period of one year and fine of Rs.1 lakh each, with a default sentence of simple imprisonment for a further period of one month. 7. Aggrieved by the conviction and sentence imposed by the trial court, the 1[st] accused/revision petitioner preferred Crl.Appeal No.442 of 2015 and the 2[nd] accused preferred Crl.Appeal No.441 of 2015. The appellate court considered both appeals together, and dismissed the appeals, upholding the conviction and sentence imposed by the trial court. The revision petitioner herein, who was the appellant in Crl.Appeal No.442 of 2015, preferred this revision against dismissal of his appeal. 8. Now this Court is called upon to verify the legality, propriety and correctness of the concurrent 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 ``` CRL.REV.PET NO. 254 OF 2016 ``` ``` 5 ``` and learned Public Prosecutor. 10. PW1-the detecting officer and PW2-the excise officer, who was accompanying him in the patrol party fully supported the prosecution case, and noting was brought out to discredit his testimony. True that, PWs.3 and 4, the independent witnesses, turned hostile to the prosecution. But hostility of the independent witnesses is not a ground to disbelieve the testimony of the official witnesses, if it is found reliable and trustworthy. 11. In **Abdul Rasheed v. State of Kerala** [2008 (3) KLT 150], and **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 ill-motivated independent witnesses is of no consequence. 12. The testimony of PWS.1 and 2 being blemishless and free from suspicion, it inspires confidence of this Court and hostility of PWs.3 and 4 is not a ground to disbelieve their testimony (See **Balachandran v. State of Kerala** ``` CRL.REV.PET NO. 254 OF 2016 ``` ``` 6 ``` 2020 (4) KLT 137 : **Sasidharan v. State of Kerala** 2007 (1) KLT 720] 13. Learned counsel for the revision petitioner would submit that, Ext.D1, copy of seizure mahazar supplied to the revision petitioner, will not show impression of the specimen seal. But, on going through Ext.P3 seizure mahazar, it could be seen that, the specimen impression of the seal was affixed in the seizure mahazar, and the same seal was affixed in Ext.P8 property list also, which was prepared at the scene of occurrence. So, the absence of the impression of the seal in the copy of the seizure mahazar, subsequently supplied to the revision petitioner is not material. Moreover, the property seized on 03.06.2014 at 7.30 p.m., was produced before the jurisdictional Magistrate on the very next day without any delay. Ext.P10 chemical analysis report shows that, the sample bottles were forwarded to the chemical examiner’s lab on 09.06.2014 and it reached the lab on the very same day. So, there was no delay in that aspect also. Ext.P10 chemical analysis report also shows that, the samples ``` CRL.REV.PET NO. 254 OF 2016 ``` ``` 7 ``` analysed contained ethyl alcohol. So, the testimony of PWs.1 and 2 is sufficient to show that, the contraband was seized from the possession of the revision petitioner and the 2[nd] accused, and Ext.P10 report shows that it contained ethyl alcohol. 14. The prosecution succeeded in proving that, the revision petitioner (A1) was found transporting 30 litres of illicit arrack in autorickshaw bearing Registration No. KL-11-X-799, at Chelannur along with the 2[nd] accused. Except the contention that, the independent witnesses did not support the prosecution case, nothing material is brought out to discredit the testimony of the official witnesses, which is reliable and trustworthy. 15. In the result, the impugned judgment of conviction and sentence rendered by the trial court as well as the appellate court seems to be legal and proper, and this Court finds nothing to interfere with the same. 16. The revision fails and hence dismissed upholding the conviction and sentence imposed on the revision ``` CRL.REV.PET NO. 254 OF 2016 ``` ``` 8 ``` petitioner by the trial court as well as the appellate court. Registry of this Court is directed to transmit the records forthwith to the trial court, for executing the sentence without delay. **Sd/-** **SOPHY THOMAS JUDGE** LU