Kurian, S/o Issac v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 10TH DAY OF JUNE 2016/20TH JYAISHTA, 1938** **Crl.Rev.Pet.No. 1722 of 2004 (A) ---------------------------------** **AGAINST THE JUDGMENT IN CRL.APPEAL NO.276/2001 of ADDITIONAL SESSIONS JUDGE,THODUPUZHA DATED 30-03-2004** **AGAINST THE JUDGMENT IN SC.13/2000 of ASSISTANT SESSIONS JUDGE,KATTAPPANA DATED 17-12-2001** **REVISION PETITIONER(S)/APPELLANT/ACCUSED.:** **--------------------------------------------KURIAN, S/O.ISSAC, KOLLAMPARAMBIL VEEDU, CHAKKUPALLAM KARA AND VILLAGE, IDUKKI DISTRICT.** **BY ADV. SRI.P.KURUVILLA JACOB** ## **RESPONDENT(S)/RESPONDENT/STATE/COMPLAINANT.:** **----------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. M.G. LISHA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No.1722 of 2004 ---------------------------------------------Dated this the 10[th] day of June, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl.Appeal No.276/2001 of Additional Sessions Judge, Thodupuzha. He was charge sheeted in S.C.No.13/2000 before Assistant Sessions Judge, Kattappana for offence punishable u/s.55(a) of the Abkari Act. The charge against the accused is that on 7.11.1997 at 4.40 p.m. the Circle Inspector of Police, Kumali detected 10 litres of arrack from the possession of the accused near the house of one Kilithoor Kunjoonjukutty. He was arrested and the contraband articles were seized. Kumali police registered a crime and after completing investigation, Sub Crl.R.P. No.1722/2004 2 Inspector of Police, Kumali laid charge before Judicial First Class Magistrate Court, Peerumade from there the case was committed to Sessions Court, Thodupuzha. Subsequently, it was made over to Asst. Sessions Judge, Kattappana. 2. During trial, prosecution examined PW1 to PW6 and marked Exts.P1 to P6(a). MO1 and MO2 were marked as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. The learned Asst. Sessions Judge convicted the accused u/s.55(a) of the Abkari Act and sentenced to rigorous imprisonment for 3 ½ years and fine of 1 lakh, in default₹ of payment of fine, rigorous imprisonment for one year. Against that, he preferred Crl.Appeal No.276/2001 of Additional Sessions Court, Thodupuzha, where the Crl.R.P. No.1722/2004 3 appellate Court modified the sentence. Being aggrieved by that, the accused preferred this revision petition. 3. Heard both sides. The main contention advanced by the learned counsel for the revision petitioner is that in this case, the complainant is the C.I. of Police, Kumali, but the investigation was conducted by the Sub Inspector of Police. The learned counsel contended that if the complainant is a police officer, the investigation must be conducted by his superior officer. Moreover, there is shifting of place of occurrence. The independent witness did not support the seizure of arrack. 4. The prosecution examined PW1 as the occurrence witness. The evidence of PW1 shows that he is residing near the place of occurrence and doing business. He knew the accused, who is his neighbour. He gave statement to the Police that on the date of incident, while Crl.R.P. No.1722/2004 4 he was proceeding through the road , he saw two Policemen carrying two cannas near the house of Kunjoonjukutty, the accused was also carrying arrack and proceeding through the road. But, he did not see the seizure of the arrack. This witness was declared as hostile to the prosecution. He signed in the mahazar, which was marked as Ext.P1 in the trial Court. Analysing the evidence of PW1, it is clear that he attested Ext.P1 and saw the accused carrying arrack in his hand. PW2 also admitted his signature in Ext.P1. But, he did not see the seizure of arrack. PW3 also admitted his signature in Ext.P2. PW3 declared as hostile. PW4 deposed that he accompanied the Circle Inspector of Police, Kumali for patrol duty and saw detection of arrack from the possession of the accused. The seized arrack with jar was marked as MO1. Two bottles containing 125Ml were taken as sample from MO1. Crl.R.P. No.1722/2004 5 For that, police prepared Ext.P1 mahazar and the independent witnesses present there attested in it. The cross examination of PW4 shows that the arrack was seized from the possession of the accused by the C.I. of Police. 5. PW6 C.I. of Police deposed that on 7.11.1997 at 15.40, he arrested the accused with MO1. On inspection of MO1, he detected arrack in it. He took 125ml as sample in two bottles. The independent witnesses present there saw the seizure. He sealed the sample and MO1 at the place of occurrence itself. For that, he prepared Ext.P1 mahazar. The accused and the contraband articles were produced in the Police Station and registered a suo motu case. Ext.P6 is the suo motu information and Ext.P6(a) is the FIR. Further investigation was conducted by S.I. of Police, Kumali. Even though this witness was cross Crl.R.P. No.1722/2004 6 examined by the defence counsel, nothing has been brought out to discredit his evidence. 6. The investigation was conducted by PW5 S.I. of Police, Kumali. His evidence shows that he arrived at the place of occurrence and prepared Ext.P2 mahazar. He produced MO1 and MO2 before Court. Ext.P3 is the property list. The arrack was forwarded to chemical examiner's lab through Court. Ext.P4 is the forwarding note. Ext.P5 is the chemical examination result. The case was registered by PW6 and he identified Ext.P6(a) FIR. On a close analysis of the evidence shows that while conducting patrol duty, PW6 arrested the revision petitioner without warrant from the house of one Kunjoonjukutty with MO1. PW6 is the competent officer to seize and detain the liquor and he arrested the accused and produced before the Kumali Police Station. No reasons Crl.R.P. No.1722/2004 7 are highlighted by the revision petitioner to discard the evidence. Therefore, the prosecution succeeded in proving the seizure of arrack from the possession of the accused. 7. According to Section 8 of the Abkari Act, no person shall manufacture, import, export without permit and transit, possess, store, distribute, bottle or sell arrack in any form. Whoever manufacture, import, export, transport, possess or distribute or sell arrack in any form amounts to an offence u/s.8 of the Abkari Act. This Court in **Gopan** v. **State of Kerala** [2007 (3) KLT 443] held that mere possession of arrack in any form without any authority would only attract S.8 and not S.58. In the result, the conviction and sentence passed by the Asst. Sessions Judge, Kattappana u/s.55(a) of the Abkari Act are set aside. The revision petitioner is convicted u/s.8 of the Abkari Act and sentenced to Crl.R.P. No.1722/2004 8 imprisonment for one month and fine of 1 lakh, in default₹ of payment of fine, simple imprisonment for 15 days (Relied **Sasikumar** v. **State of Kerala** [2012 (4) KLT 867SC]). He is directed to surrender in the trial Court forthwith to undergo the modified sentence. The period of detention undergone by the revision petitioner shall be entitled to set off against the terms of imprisonment imposed on him during trial and investigation. Crl.R.P. is disposed of. **P.D. RAJAN, JUDGE.** acd Crl.R.P. No.1722/2004 9 Crl.R.P. No.1722/2004 10