Malu, W/o Antony v. The Excise Inspector Kunnamangalam Excise Range and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **THURSDAY, THE 26[TH] DAY OF AUGUST 2021 / 4TH BHADRA, 1943** **CRL.A NO. 14 OF 2013** **AGAINST THE JUDGMENT IN SC 731/2011 OF ADDITIONAL SESSIONS** ## **COURT, KOZHIKODE** **APPELLANT/ACCUSED:** **MALU, W/O. ANTONY** **A.K.G. COLONY, CHATHAMANGALAM AMSOM, MALAYAMMA DESOM, KOZHIKODE.** **BY ADVS. SRI.T.G.RAJENDRAN SRI.T.R.TARIN** ## **RESPONDENTS/COMPLAINANT & STATE:** - **1 THE EXCISE INSPECTOR KUNNAMANGALAM EXCISE RANGE-673571.** - **2 STATE OF KERALA RERPRESENTED BY PUBLIC PROSEUCTOR, HIGH COURT OF KERALA, ERANAKULAM.** **SRI. M.C. ASHI PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeal No.14/13 ## **-:2:-** ## **JUDGMENT** Dated this the 26[th] day of August, 2021 Appellant was the accused in S.C. No.731 of 2011 on the files of the Sessions Court, Kozhikode. Appellant assails the conviction for the offence under section 8(1) of the Abkari Act and the consequent sentence of two years simple imprisonment and fine of Rs.1,00,000/-, in default to undergo simple imprisonment for six months, imposed as per the judgment dated 18.12.2012. 2. Prosecution had alleged that on 16.12.2009 at around 3.30 pm, PW1 and his party, while on patrol duty found the accused carrying two litres of arrack in a 2½ litre white can contrary to the provisions of the Abkari Act. After realising that the white can contains arrack, a sample was taken and affixed the seal. Since the accused was a lady and the excise patrol party did not have a lady officer in their midst, the accused was not arrested. It was also the prosecution case that, subsequently, on 10.6.2010, accused was arrested by the investigating officer. After completion of investigation when the final report was filed, the learned Judicial First Class Magistrate, Kunnamangalam, on noticing the commission of an offence triable exclusively by a court of session, committed the same Crl.Appeal No.14/13 ## **-:3:-** for trial to the Sessions Court, Kozhikode. 3. In a bid to prove the prosecution case, PW1 to PW6 were examined and Ext.P1 to Ext.P7 were marked, while the defence examined DW1 and marked Ext.D1 series. 4. After analysing the circumstances arising in the case and the evidence, the learned Sessions Judge found the accused guilty for the offence under section 8(1) of the Abkari Act and imposed a sentence of simple imprisonment of two years and a fine of Rs.1,00,000/- and in default to undergo simple imprisonment for six months. 5. I have heard Adv.T.G.Rajendran, the learned counsel for the appellant as well as Adv.M.C.Ashi, the learned Public Prosecutor on behalf of the State. 6. Learned counsel for the appellant vehemently contended that the prosecution had miserably failed in proving the case against the accused beyond reasonable doubt. Learned counsel contended that the prosecution failed to prove the fact about who took the sample from the contraband seized. The learned counsel also attacked the manner of sampling as well as the procedure adopted while forwarding the sample for analysis to the analytical laboratory Crl.Appeal No.14/13 ## **-:4:-** and submitted that there was a delay of four days in the sample reaching the analytical laboratory for examination. According to the learned counsel, the said delay having not been explained, the benefit of doubt ought to be accorded to the appellant. It was also submitted that the accused being a lady who is presently in her late 50s, a lenient view in the matter of sentencing ought to be adopted especially since the quantum was only 2½ litres. 7. The learned Public Prosecutor on the other hand invited the court's attention to the mahazar as well as the evidence of PW1 and pointed out that the sample was specifically taken from the contraband seized, at the time of seizure itself and the nature and type of seal affixed on the sample was specifically mentioned in the mahazar thereby complying with the requirements of law. The learned prosecutor also submitted that there was no delay in forwarding the sample to the analytical laboratory. Above all, according to the learned Public Prosecutor, the defence never had such a case at the time of trial that any prejudice was caused to the accused on account of the contentions now being attempted to be raised. 8. I have considered the rival contentions. PW1, the Excise Crl.Appeal No.14/13 ## **-:5:-** Inspector who detected the offence, has clearly stated in his evidence that while they were on patrol duty they found the accused in possession of the contraband and they had taken the sample at the spot and had affixed the seal and the label containing the signatures of the accused as well as that of the witnesses. The mahazar which is a contemporaneous record prepared at the time of seizure also mentions the type and nature of seal that was affixed on the sample. In spite of detailed cross-examination, nothing contradictory could be elicited to disapprove the version of PW1 regarding the procedure for sampling adopted by him. He had also deposed that the sample was produced before the court and the property list was prepared by him which was marked as Ext.P4. A perusal of Ext.P4 shows that the same was prepared by PW1 on 16.12.2009, the date of detection of the offence, and it was produced before the Magistrate court and received as Item No.381 of 2009 on 17.12.2009. Similar endorsement of the receipt of the forwarding note prepared by PW1 is also seen endorsed on Ext.P3 forwarding note. Thus, the sample seized by PW1 was produced before the court without any delay. 9. The contention of the learned counsel for the appellant that Crl.Appeal No.14/13 **-:6:-** there is no evidence on who produced the seized articles before the court, though impressive at first glimpse, is according to me, of no consequence in the nature of evidence that have been adduced in the case. The defence had not put any question to any of the witnesses regarding the above mentioned aspect and on the other hand, PW1 stated that the forwarding note and the contraband were produced before the Court. In the absence of any contra evidence and in the absence of any thing elicited through cross-examination, there is no reason for this Court to assume that the production of contraband before the court along with the sample caused any prejudice to the accused merely because PW1 had not specifically mentioned on who produced the same before the court. 10. In this context, it is also relevant to mention that the prompt production of the contraband before court is a significant factor. The circumstances reveal that there was no scope for any tampering or prejudice to the appellant on the aforesaid count. 11. It was further contended that the forwarding note reached the analytical laboratory belatedly. The said contention, according to me, has no basis since a perusal of Ext.P3 forwarding note and Ext.P7 certificate of analysis shows that the forwarding note though Crl.Appeal No.14/13 **-:7:-** received in court on 17.12.2009 was countersigned by the Magistrate on 21.12.2009 for sending it to the chemical laboratory through Excise Guard, Sri.Divesh K.P. and the same was received at the analytical laboratory on the same day itself. Thus, Ext.P3 and Ext.P7 tally with each other and there is no reason to doubt the veracity of the recordings contained therein. 12. The learned counsel for the appellant also reiterated the contentions raised in the trial court that there are no independent witnesses whose evidence could be relied upon by the Court since PW3 and PW4 had turned hostile. The learned counsel however fairly pointed out that in view of the decision of the Constitutional Bench in **Mukesh Singh v. State (Narcotic Branch of Delhi)** [(2020) 10 SCC 120], the said contention is no longer available for the appellant since the evidence of official witnesses have got equal probative value as that of any independent witness. Reference is also made to **Karamjit Singh v. State (Delhi Administration)** [(2003) 5 SCC 291] and **Devender Pal Singh v. State of NCT of Delhi and Another** [(2002) 5 SCC 234]. 13. Reliance upon the evidence of DW1 is also of no avail since it has come out, through the evidence of DW1 herself, that, she **-:8:-** Crl.Appeal No.14/13 has no direct knowledge of the incident and that she was not present at the time when the mahazar was effected. 14. The learned Sessions Judge has considered all the aspects in detail and I find no reason to interfere with the finding of guilt recorded by the learned Sessions Judge. Accordingly, I hold that the finding of guilt recorded by the learned Sessions Judge in S.C. No.731 of 2011 was legal and proper. 15. Even though I have affirmed the conviction of the appellant, I am persuaded to agree with the learned counsel for the appellant regarding the severity of the sentence. The quantity of contraband seized is only 2 litres and as the appellant being a lady in her late 50s, I am of the view that the sentence imposed upon the appellant is harsh. A lenient view can be adopted in the peculiar circumstances of the case. The records reveal that appellant was apprehended on 10.6.2010 and was released on bail on 23.7.2010. The period which she had already undergone imprisonment is a sufficient sentence apart from the mandatory fine. Accordingly, I modify the sentence of imprisonment imposed upon the appellant by the learned Sessions Judge to the period already undergone and affirm the sentence of fine and the default sentence thereto. Crl.Appeal No.14/13 **-:9:-** 16. In the result, I allow this appeal in part, by confirming the finding of guilt of the accused in S.C. No.731 of 2011 on the files of the learned Sessions Judge, Kozhikode and modify the sentence of imprisonment to the period already undergone. The sentence of fine and default sentence imposed by the learned Sessions Judge shall stand affirmed. The appeal is thus allowed in part. ## **Sd/-** **BECHU KURIAN THOMAS JUDGE** vps /True Copy/ PS to Judge