Manoharan v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **WEDNESDAY, THE 4TH DAY OF JANUARY 2012/14TH POUSHA 1933** **CRA.No. 1692 of 2004 ( )** **========================** **SC.613/2003 of III ADDITIONAL SESSIONS COURT (ADHOC), FAST TRACK-I, THRISSUR** **============** **APPELLANT/ACCUSED :-** **======================** **MANOHARAN, S/O.KANNANKULANGARA SUBRAN, CHITTISSERI, NENMANIKKARA.** **BY ADV.SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ** ## **RESPONDENT/COMPLAINANT :-** **==========================** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** **PUBLIC PROSECUTOR SMT.V.H.JASMINE** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 04-01-2012 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jvt** ## **N.K.BALAKRISHNAN, J. -------------------------------Crl.A. No.1692 of 2004 --------------------------------Dated this the 4[th] day of January 2012** ## **J U D G M E N T** The appellant was convicted by the III Addl. Sessions Judge (Adhoc), Fast Track Court-I, Thrissur for offence punishable under Sec.55(a) of the Abkari Act and he was sentenced to undergo R.I. for one year and to pay Rs.One Lakh as fine and in default to undergo R.I. for three months. 2. The case of the prosecution is that, on 9.1.2000 at about 11.40 AM, while PW1 and other excise officials were on patrol duty, when they reached the place of incident they found the accused carrying a big shopper containing some articles. On seeing the excise officials the appellant turned backwards and was seen jittering. PW1 and others reached there. He was intercepted. The big shopper, when examined was found to contain 60 bottles of 375ml each Mahanagar Classic Fine Whisky. Those bottles were found Crl.A. No.1692 of 2004 -: 2 :- to contain labels indicating that it was to be sold in Karnataka State only. The accused was thus arrested. Two bottles were taken as sample. The properties were seized. Ext.P1, the seizure mahazar was prepared in the presence of independent witnesses. The accused and the properties were produced before the court. When the samples were sent for analysis, it was found to contain 40.79% by volume of Ethyl Alcohol. 3. Before the court below, PWs.1 to 6 were examined and Exts.P1 to P8 were marked. 58 bottles of 375ml each and the big shopper were marked as MO1 series and MO2 respectively. 4. The learned Sessions Judge after analysing the evidence found that the prosecution case is true and hence, the appellant was convicted and sentenced as mentioned above. 5. Learned counsel for the appellant assailed the finding of the court below on various grounds. It is Crl.A. No.1692 of 2004 -: 3 :- submitted by the learned counsel that there is material contradiction in the evidence given by PW1 and PW6. It is also pointed out that as per Ext.P7 scene plan and Ext.P6 scene mahazar, the house of the accused is very near to the place of occurrence, but no search of the appellant's house was conducted. That itself, according to the learned counsel, would unfold the fallacy of the prosecution case. It is also pointed out that it is very difficult to carry 60 bottles in a big shopper holding it on his shoulder, and to walk along the road at 11.40 AM and so the learned counsel submits that there is improbability in the case advanced by the prosecution. It is also argued that though two independent witnesses are cited by the prosecution, both of them did not support the prosecution and so benefit of reasonable doubt has to be given to the appellant. 6. Learned Public Prosecutor would support the impugned judgment and submit that there is no material contradiction in the evidence given by the prosecution Crl.A. No.1692 of 2004 -: 4 :- witnesses. The evidence given by PW1 was corroborated by PW6. It was argued by the learned counsel for the appellant that while PW1 says that the accused was seen from behind at a distance of 50 meters, when they were proceeding towards the accused and thereafter he was apprehended, PW6 says that the accused was coming towards them and so he was seen from the front. On going through Ext.P1 mahazar it can be seen that at first the accused was seen coming towards them from the front but on seeing the Excise officials, the accused turned back and was proceeding in the opposite and so it is possible to say that he was seen from behind also. Whatever that be, the contradiction projected by the defence is not of that much significance so as to reject the prosecution case. 7. The two independent witnesses did not support the prosecution but it was admitted that Ext.P1 was signed by them. That the independent witnesses turned hostile is not a reason to hold that the evidence given by the official Crl.A. No.1692 of 2004 -: 5 :- witnesses should be discarded. It is also important to note that the accused and all the liquor bottles including two sample bottles were produced before the court without delay. It was testified by the witnesses that the labels affixed in the two sample bottles contained the signature of the accused. Those aspects were not properly assailed by the defence. Therefore, it can be seen that there was no delay in production of those articles before the court as well. The Chemical Examiner's report shows that all the bottles contained liquor. Since all the liquor bottles contained label as Indian Made Foreign Liquor, but intended to be used or sold in Karnataka State only, it can be very well held that the possession of the same was without any bill and was in contravention of the provisions of the Abkari Act. The learned counsel for the appellant would submit that it is highly improbable that the accused would have carried 60 bottles mentioned above walking along the road that too at 11.40 AM. The court cannot Crl.A. No.1692 of 2004 -: 6 :- assume that it is highly improbable that the accused could not have carried the liquor bottles as mentioned above. Learned Public Prosecutor would submit that the learned trial Judge appreciated the evidence given by PW1 and PW6 in the correct perspective. There is no reason to hold otherwise. It is further argued by the learned counsel for the appellant that the forwarding note was not marked and the property/'Thondy' clerk was not examined to prove that the sample was taken properly. The learned counsel has relied upon the decision of this Court in **Sasidharan** v. **State of Kerala** reported in [2007 (1) KLT 720] in support of his submission that the court cannot presume that the official acts were regularly and properly performed. Learned Public Prosecutor submits that the evidence given by PW2 that the labels affixed on the sample bottles were signed by the accused was not challenged. Those two sample bottles reached the lab in tact as shown in Ext.P8. A detailed description of the sample bottles which reached lab Crl.A. No.1692 of 2004 -: 7 :- are mentioned in the first page of Ext.P8. It was also certified that seal on the sample bottles was intact and found tallied with the sample seal provided which would prove that the sample seal provided/affixed on the forwarding note did tally with the seals affixed on the sample bottles. Those aspects were not challenged by the defence. Therefore, the contention that the property clerk/Thondy clerk should have been examined by the prosecution to prove that the sample bottles were duly packed, sealed and sent to the laboratory cannot be countenanced. Since the liquor bottles contained the stickers/labels indicating that the liquor was intended to be sold only in Karnataka State it can be presumed that the possession of the same by the accused was in contravention of the provisions of the Abkari Act. The presumption available under Sec.64 of the Abkari Act was not rebutted by the accused. It is for the accused to prove that how those liquor bottles containing such labels/stickers of Crl.A. No.1692 of 2004 -: 8 :- another State happened to be in his possession. That is a fact which is especially within the knowledge of the accused. Therefore, it has to be held that the accused was in possession of those liquor bottles in contravention of the provisions of the Abkari Act. Hence the conviction of the accused/appellant for the offence under Sec.55(a) has to be confirmed. 8. Learned counsel for the appellant submits that the case was detected in the year 2000. 12 years have elapsed. Learned Public Prosecutor would submit that the fact that the appeal happened to be pending before this Court for more than 7 years is not a reason to show leniency. However, considering all the aspects, the substantive sentence can be reduced to R.I. for six months. The remaining part of the sentence requires no alteration. In the result, this Crl.A. is disposed of as stated below :- The conviction of the appellant for the offence Crl.A. No.1692 of 2004 -: 9 :- punishable under Sec.55(a) of the Abkari Act is confirmed. While sustaining the sentence of fine and default sentence, the substantive sentence awarded by the court below is reduced to R.I. for six months. The period of detention if any undergone by the accused/appellant shall be set off as provided under Sec.428 Cr.P.C. The court below will proceed to execute the sentence forthwith. **N.K.BALAKRISHNAN, JUDGE.** Jvt