K.K. Soman v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 4[TH] DAY OF NOVEMBER 2022/ 13TH KARTHIKA, 1944 CRL.A NO. 452 OF 2014** **AGAINST THE JUDGMENT 24.04.2014 IN S.C.NO.345 OF 2013 OF THE ADDITIONAL SESSIONS COURT-II, KASARAGOD APPELLANT/ACCUSED:** **K.K.SOMAN AGED 54 YEARS, S/O.KANNAT KUTTAPPAN, ARANGANADUKKAM, PERIYA VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT.** **BY ADV SRI.A.ARUNKUMAR** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** **SRI.G.SUDHEER, PUBLIC PROSECUTOR.** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 04.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.452 of 2014 ## **JUDGMENT** This is an appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973. The appellant/accused was convicted for an offence punishable under Section 8(2) of the Abkari Act, 1077 and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.one lakh, with a default sentence of three months' rigorous imprisonment, as per judgment dated 24.04.2014 in S.C.No. 345 of 2013 of the Additional Sessions Court-II, Kasaragod. 2. On 22.05.2014, the appeal was admitted. The sentence imposed on the appellant was suspended and he was released on bail on conditions. 3. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor. 4. The allegation against the appellant is that on 10.01.2011, he was found in possession of 4 litres of arrack in a plastic can of 5 litre capacity at Kaikottukundu. 5. Before the Additional Sessions Court-II, Kasaragod, PWs.1 to 6 were examined and Exst.P1 to P14 were marked 3 Crl.Appeal No.452 of 2014 on the side of the prosecution. The appellant was questioned under Section 313(1)(b) of the Code. He has denied all the incriminating circumstances appeared against him in evidence. He maintained that he was arrested from his house and the case was foisted against him. 6. The learned Additional Sessions Judge, after considering the evidence let in by the prosecution, came to the conclusion that the prosecution has complied with all the statutory requirements for the arrest, seizure and prosecution and the evidence tendered by the prosecution successfully proved the charges levelled against the appellant. Accordingly, the appellant was found guilty and convicted for the said offence. 7. The learned counsel appearing for the appellant would contend that the case was foisted by the Excise officials and that is why no independent witness supported the prosecution. The learned counsel would point out that although PWs.2 and 3 were cited and examined as the witnesses to the seizure and arrest of the appellant, they denied having seen such an incident. Ext.P12, the scene 4 Crl.Appeal No.452 of 2014 mahazar prepared by PW4 investigating officer, was not attested by any witness even. The official witnesses alone tendered evidence regarding the whole process of arrest, seizure and investigation and that necessarily implies that the case was foisted against the appellant. 8. The learned counsel for the appellant further would submit that the vehicle movement register relating to the vehicle, in which PWs.1 and 5 claimed to have reached the place of occurrence was not produced in court, which also supports the case that the appellant was not arrested at the place of occurrence as claimed by the prosecution. The learned counsel would further contend that neither the contraband nor the samples was produced before the court and thereby the principles of natural justice were violated inasmuch as the appellant was denied an opportunity to challenge the genuineness and identity of such articles. The appellant could have cross-examined the detecting officers as well as the investigating officers with reference to the contraband and the samples prepared in this case, but that 5 Crl.Appeal No.452 of 2014 opportunity was denied for want of production of those articles before the court. 9. The learned Public Prosecutor, on the other hand, would submit that all the statutory requirements are complied with and the evidence of PWs.1 and 5, the officials, who effected seizure and arrest, is devoid of any inconsistency or discrepancy. Their evidence having stood unassailable, and even in the absence of any independent evidence, they can be believed. It is also pointed out that PWs.3 and 4, who are the attesting witness in Ext.P1, admitted having signed not only in the mahazar, but also the wrappers affixed on the samples and the contraband. Therefore, it is quite clear that they dishonestly denied having seen the incident. 10. The evidence of PWs.1 and 5 alone is available to prove the seizure of the contraband and arrest of the accused. PW5 was the Circle Inspector of Excise and PW1 was the Preventive Officer attached to the Excise Circle Office, Hosdurg. Both of them deposed in detail regarding the arrest of the accused and seizure of the contraband. While they were 6 Crl.Appeal No.452 of 2014 on patrol duty found the accused coming carrying the plastic can and on inspection the can contained 4 litres of arrack. Ext.P1 is the seizure mahazar. It was prepared, after drawing up the samples from the contraband, for the seizure of both contraband and the samples. PW5 prepared the arrest memo, Ext.P10 and the inspection memo, Ext.P9, at the place of occurrence itself. The arrest was informed to the wife of the appellant, who stated to have reached the place of occurrence knowing the incident. 11. PW5 produced the accused along with the contraband, samples and documents before PW4, who was the Excise Circle Inspector of Hosdurg Excise Range. He registered the crime as per Ext.P3 occurrence report. He had sent the appellant as well as the records to the court. He also produced the contraband and the samples along with an inventory, Ext.P7, before the judicial Magistrate of the First Class-II, Hosdurg. Ext.P7 would show that the learned Magistrate had inspected the properties with reference to the inventory and certified that those were duly packed and 7 Crl.Appeal No.452 of 2014 sampled, and tallied with the documents produced before him. 12. PWs.2 and 3 did not support the case of the prosecution. They deposed in court that they had signed Ext.P1 and also affixed their signature on the sample and the wrappers on the contraband. Since they stated denying to have seen the arrest of the accused and seizure of the contraband, their evidence is not available to render support to the evidence of PWs.1 and 5 appertain to the actual acts of arrest and seizure. However, their admission regarding signatures in Ext.P1 would go to show that what PWs.1 and 5 stated that they reached the place of occurrence is correct. 13. On going through the oral testimony of PWs.1 and 5, who are official witnesses, there cannot be seen any material discrepancy. The detailed description in Ext. P1 mahazar regarding the seizure and the arrest lend sufficient support to the oral testimony of PWs.1 and 5 in court. 14. The Apex Court in **Karamjit Singh v. State (Delhi Administration) [AIR 2003 SC 1311]** held that,- 8 Crl.Appeal No.452 of 2014 “The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down.” 15. In the light of the law laid down in the aforesaid decision, I am of the view that the evidence of PWs.1 and 5, which is devoid of any serious discrepancy, can be acted upon to reach a conviction. 16. The properties and the sample were produced along with an inventory before the jurisdictional Magistrate and the same was attested, as provided under Section 53A of the Abkari Act. The inventory, Ext. P7 carries a presumption as provided under Section 53A(5) of the Abkari Act. Since such a statutory presumption that Ext.P7 is liable to be acted upon as primary evidence, non-production of the contraband and samples at the time of trial, does not have the effect of denial of any right of the appellant. There is nothing on record 9 Crl.Appeal No.452 of 2014 to show that there occurred an inordinate delay in producing the property and the samples before the Court. 17. It is seen from Ext.P7 and also the property list that two samples were prepared and from the said samples, which were duly certified by the Magistrate, one was sent to the Chemical Examiners' Laboratory. Ext.P5 is the forwarding note and Ext.P14 is the report of the Chemical Analyst. Going by the report, Ext.P14, the sample tested by the Analyst contained 15.02% Ethyl Alcohol. It proves that the sample tested was arrack, and therefore the contraband seized from the possession of the appellant was arrack. Possession of arrack is prohibited under Section 8(1) of the Abkari Act. From what are stated above, it stands proved that the appellant was found in possession of 4 litres of arrack as alleged by the prosecution. 18. Viewed so, I find no reason to interfere with the finding of the learned Sessions Judge that the appellant has committed the offence punishable under Section 8(2) of the Abkari Act. Hence, the challenge to the conviction of the appellant fails. Conviction of the appellant under Section 8(2) 10 Crl.Appeal No.452 of 2014 of the Abkari Act is confirmed. 19. The learned counsel for the appellant would submit that the appellant never had involved in any other crime and he is now aged 62 years. It is also submitted that the appellant is a patient ailing from many diseases. Considering those aspects, a lenient view in the matter of sentencing is taken. The incident took place on 10.01.2012. The appellant has been in custody from 10.01.2012 till 05.03.2012. 20. Taking into account all such aspects, I am of the view that interference is warranted on the sentence imposed on the appellant. In modification of the sentence imposed by the learned Sessions judge, the appellant is sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.one lakh. In the event of non-payment of fine, the appellant has to undergo simple imprisonment for a further period of two months. The appeal is allowed accordingly in part. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr