MALU, CHETTIAMVEETTIL, PADINJATTUM MURI DESOM DESOM, KIZHAKKUM MURI AMSOM, KOZHIKODE TALUK v. KERALA STATE REPRESENTED BY EXCISE INSPECTOR, CHELANNUR EXCISE RANGE, KOZHIKODE

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR FRIDAY, THE 28TH DAY OF NOVEMBER 2014/7TH AGRAHAYANA, 1936 CRL.A.No. 762 of 2004 (B) -------------------------(AGAINST THE JUDGMENT IN SC 60/2003 of THE COURT OF III ADDL. ASST. SESSIONS JUDGE, KOZHIKODE DATED 03-04-2004) APPELLANT/ACCUSED: ----------------------- MALU, CHETTIAMVEETTIL, PADINJATTUM MURI DESOM DESOM, KIZHAKKUM MURI AMSOM, KOZHIKODE TALUK. BY ADV. SRI.JAYARAJ NAMBIAR RESPONDENT: ---------------- KERALA STATE REPRESENTED BY EXCISE INSPECTOR, CHELANNUR EXCISE RANGE, KOZHIKODE. BY PUBLIC PROSECUTOR SMT.V.H.JASMINE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR, J.** -----------------------------Crl. Appeal No.762 of 2004 ------------------------------Dated 28[th] November, 2014 ## **JUDGMENT** This appeal is directed against the judgment of conviction passed by the Court of III Additional Assistant Sessions Judge, Kozhikode in S.C.No.60 of 2003. The appellant is a lady. She was the sole accused and she was tried for the offence under Section 55(a) of the Abkari Act. As per the impugned judgment she was found guilty and convicted thereunder. Upon such conviction she was sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine to undergo simple imprisonment for three months. 2. The case of the prosecution, in succinct, is as follows:- The Excise party consisted of PWs1 and 2 found the appellant in possession of 5 litres of illicit arrack on 8.11.1999 at about 11 a.m. at Kizhakkumuri Amsom, Padinhattamuri Desom. They were conducting patrol duty and when they reached near Koodukulam Chalil Thazham road they found the appellant/accused carrying MO1 Can. Crl.A.No.762/2004 2 The demeanour of the appellant at the sight of the Excise party created suspicion and then she was intercepted and the Can was inspected. The liquid contained in MO1 on smelling and tasting identified as illicit arrack measuring about 5 litres. Consequently, the accused was arrested under Ext.P4 arrest memo and the Can (MO1) containing 5 litres of arrack was seized under Ext.P5 mahazar. Sample was drawn from the contraband liquid contained in MO1 and it was sealed and labelled. MO1 containing the residue was also sealed and labelled. Along with the sample and MO1 with residue the accused was taken to the Excise Range Office and Ext.P1 crime and occurrence report was registered. Ext.P2 is the property list prepared and under Ext.P3 forwarding note the sample taken was forwarded for chemical analysis. Ext.P8 is the chemical analysis report. To substantiate the prosecution case PWs 1 to 7 were examined and Exts.P1 to P8 were got marked and MO1 was identified. After the closure of the prosecution evidence the accused was questioned under Section 313 Cr.P.C. and all the incriminating circumstances were put to her. The accused denied all such incriminating circumstances. Finding that the case is not fit for acquittal under Section 232 Cr.P.C. the accused was directed to enter on her defence. However, the accused did not adduce any evidence, either oral or documentary. Upon careful analysis of the evidence on record and considering the arguments advanced Crl.A.No.762/2004 3 the learned Assistant Sessions Judge found that the prosecution has succeeded in proving that the contraband liquid was found from the possession of the accused and the sample taken from it was illicit arrack and it contained 27.30% by volume of ethyl alcohol. Accordingly, the accused/appellant was found guilty under Section 55(a) of the Abkari Act and convicted and sentenced as aforesaid. This appeal, as stated hereinbefore, is filed against the said judgment of conviction. 3. I have heard the learned counsel for the appellant and also the learned Public Prosecutor. 4. The learned counsel appearing for the appellant contended that the conviction entered into and the sentence imposed on the appellant are nothing but an outcome of a perverse appreciation of the evidence by the trial court. It is contended that the evidence of PWs 3 and 4 who turned hostile to the prosecution would reveal that there was no proper labelling of MO1 and that apart, they had deposed to the effect that they did not see the appellant/accused in possession of MO1. In the said circumstances, the trial court ought to have found that the evidence of the rest of the witnesses were insufficient to bring conviction to the accused for the offence under Section 55(a) of the Abkari Act. Per contra Crl.A.No.762/2004 4 the learned Public Prosecutor contended that the evidence of PWs 1, 2 and 4 to 7 with the documentary evidence would undoubtedly prove the charge conclusively against the appellant. It is further contended that though the detecting officer and the Investigating Officer were cross examined thoroughly the defence could not elicit anything to render their evidence untrustworthy. It is also contended that Ext.P8 chemical analysis report would reveal that the sample sent for analysis taken from the contraband liquid in MO1 contained 27.30% by volume of ethyl alcohol. The evidence of PWs 1 and 2 would reveal that the sample was drawn from the contraband liquid contained in MO1 and in the said circumstances it is contended that the conviction entered by the trial court cannot be said to be illegal and, as such, the appellant has not made out a case for appellate interference. 5. As noticed hereinbefore, to substantiate the case prosecution examined PWs 1 to 7. The Can that contained 5 litres of illicit arrack with the residue was identified by PW1 as MO1. The trial court found that the evidence of PW1 on all material points were corroborated by the evidence of PW2 who accompanied him at the time of seizure of the contraband. A careful scanning of the cross examination made on behalf of the appellant would reveal that availing Crl.A.No.762/2004 5 the opportunity to cross examine PWs 1 and 2 on essential and material points they were not cross examined on such points and their deposition would reveal that MO1 containing 5 litres of arrack was seized from the possession of the appellant and that from the contraband liquid in MO1 the sample was drawn and both the sample taken in the bottle and the residue were properly sealed. The evidence of PWs 1 and 2 on such aspects were not shaken by the defence. In fact, the absence of examination on essential and material facts is capable of drawing a presumption that the defence was of the view that their evidence in that regard could not be disputed at all. True that PWs 3 and 4 who were the attesting witnesses to the mahazar and who allegedly put their signatures in the label turned hostile to the prosecution. It is the settled position that if witnesses turned hostile it does not mean that the entire evidence is to be discarded. In such circumstances, the rule of prudence has to be followed. The version which supports the prosecution if it is corroborated by the evidence of the other witnesses could be accepted as evidence. In this case, PW3 admitted the signature in the mahazar, but, at the same time, cast suspicion regarding the signature in the label. While he was being cross examined by the prosecution with permission of the court the following question was put to him; “ **MO1** ല� **label** ല� ഒപ�� **P5** ല� ത�ങള�ല� ഒപ�� ഒന�തലനയSsæ **(Q) MO1** ല� ഒപ� സ�ശയ� ഉണ�. എന�യ��� Crl.A.No.762/2004 6 പറയ�ന കഴ�യ�sæ.” PW4 also turned hostile to the prosecution. During his cross examination by the prosecution on getting permission from the court he would depose: “Nkf]pORa AaO¾O j]ÐO \LqLpU k]a]\ÿ]ŸOºV. Af]jV IRÐ KqO WÐLyV \Pº] WLe]\ÿV fÐV **excise** DSh|LYòന KÕ]aLന kr´O. **MO1** ല� **label** sOç KÕV Iല�pLeV.” True that both PWs 3 and 4 after turning hostile to the prosecution deposed to the effect that they did not see the accused with possession of MO1 Can. In other words, they did not lend support to the prosecution case. With respect to the signature on MO1 PW4 deposed “ **MO1** ല� **label** sOç KÕV Iല�pLeV.” A perusal of the judgment would reveal that the learned Additional Assistant Sessions Judge accepted the evidence of PWs 1 and 2 and also taken into consideration the fact that PWs 3 and 4 admitted their signature in the mahazar and PW4 also admitted his signature on MO1 label and also the contemporaneous records to hold that the accused/appellant was guilty. It is to be noted that the Investigating Officer was not at all cross examined. I have already adverted to the arguments advanced by the learned counsel appearing for the appellant. Evidently, the contention is to the effect that the evidence of PWs 3 and 4, the independent witnesses to the seizure of the contraband liquid did not lend any support to the prosecution in identifying the accused. It is the contention that since PW3 doubted his signature on MO1 the trial court should not have Crl.A.No.762/2004 7 relied on the evidence of PWs 1 and 2 to find that MO1 was properly sealed and taken. In that context it is to be noted that the signature in MO1 was admitted by PW4 who is the other independent witness. As noticed hereinbefore, despite the thorough cross examination of PWs 1 and 2 nothing could be elicited by the defence to suspect that the label was tampered with and the contraband liquid was not properly taken to the Excise Range Office and the sample drawn from the contraband liquid in MO1 did not reach the chemical analyst for analysis in a tamper proof condition. In the said circumstances, it cannot be said that the sample and the residue were not properly labelled and sealed or there is any violation of the statutory mandates with respect to the seizure. Ext.P8 is the chemical analysis report. It is specifically stated therein that one sealed 180ml bottle containing 180 ml of clear colourless liquid alleged to be arrack involved in Crime No.35/99 of Chelannur Excise Range sent for chemical analysis was received and the seal of the bottle was intact and found tallied with the sample seal provided. It was further certified that ethyl alcohol was detected in the sample and the sample of liquid contained 27.30% by volume of ethyl alcohol. In the said circumstances, with the evidence on records, it cannot be said that a conviction based on such evidence could not have been entered against the appellant. In the said circumstances, it can only be taken that the sample taken from Crl.A.No.762/2004 8 the contraband liquid reached the chemical analyst for analysis in a tamper proof condition and the said sample on analysis was found as arrack. PWs 1 and 2 identified the accused. In such circumstances, I do not find any illegality in the conclusion and finding of the court that arrack was found from the possession of the appellant and the prosecution has succeeded in proving the charge against the appellant/accused. In the light of the discussion made as above the finding entered by the court below that the accused was found in possession of 5 litres of illicit arrack cannot be said to be a faulty one. Consequently, the conviction entered against the petitioner is confirmed. 6. The learned counsel appearing for the appellant submitted that the appellant is a septuagenarian lady and no other case was registered against the appellant. The learned counsel relied on a decision of the Hon'ble Apex Court in **Gopal Singh** v. **State of Uttarakhand ((2013) 7 SCC 545)** to contend that the factum of age and the potentiality of the convict to become a criminal in future are matters to be taken into account at the time of awarding punishment. Thus, taking into account the fact that the appellant is a septuagenarian lady and at this stage it cannot be expected that she would continue to commit similar offences in future I am of the view that the substantive Crl.A.No.762/2004 9 sentence can be modified to certain extent. 7. In the result, this Criminal Appeal is disposed of as below:- The conviction of the appellant for the offence under Section 55(a) of the Abkari Act is confirmed. I am of the view that the period of detention undergone by the appellant is sufficient punishment to be awarded and hence, while confirming the conviction and the sentence of fine imposed the substantive sentence is reduced to the period of detention already undergone by the appellant. The appellant shall undergo simple imprisonment for three months in default of payment of fine. The appellant shall deposit the amount of fine within a period of five months from today and till such time the execution of the sentence shall be kept in abeyance to enable the petitioner to deposit the fine amount. In case of failure on the part of the appellant to deposit the said amount of fine the trial court shall take appropriate steps, in accordance with law, to execute the sentence. Sd/- C.T.RAVIKUMAR Judge TKS