MANOJ @ MANU v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 6TH DECEMBER 2011 / 15TH AGRAHAYANA 1933 CRL.A.No. 908 of 2011(C) -----------------------SC.492/2008 of ADDL. SESSIONS COURT(ADHOC)III, PATHANAMTHITTA .................... APPELLANT(S): -------------- MANOJ @ MANU, C.NO.6114, CENTRAL PRISON, THIRUVANANTHAPURAM. BY ADV. SHEENA.E.[STATE BRIEF] RESPONDENT: --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT. LOWSY A. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** **---------------------------------------Crl.A.No. 908 of 2011 ----------------------------------------** Dated the 6[th] day of December , 2011 ## JUDGMENT Appellant is the sole accused in S.C.No.492/2008 of the court of Additional District and Sessions Court (Ad-hoc) Fast Track-III, Pathanamthitta and he preferred this appeal challenging his conviction and sentence under section 8(2) and 8(1) of the Abkari Act. 2. The prosecution case is that on 11.9.2006 at about 11.30 a.m, the accused was found carrying 1 1/2 litres of arrack in a black plastic can, in front of a reading room, situated at Pandimalappuram in Kadampanadu village and thereby committed the offence punishable under sections 8(2) read with 8(1) () of the Abkari Act. Accordingly, crime No.82/2006 was registered in the Excise Range, Adoor and after conducting investigation, report was filed in the court of Judicial First Class Magistrate, Adoor where the same was received as C.P.No.51/2008 and subsequently the learned Magistrate by his order dated 11.7.2008 in the above proceedings committed the case to the Sessions Court and on receipt of records, the case CRL.A.No.908 of 2011 **-2-** was taken on file as S.C.No.492/2008, which was subsequently made over to the present trial court for trial and disposal. When the accused/appellant appeared, after hearing the prosecution and the defence, a formal charge was framed against the accused for the offence punishable under section 8 (2) read with Section 8(1) of the Abkari Act and when the said charge read over and explained to the accused, he denied the same and pleaded not guilty. Subsequently, the prosecution had adduced its evidence by examining PWs 1 to 6 and producing Exts.P1 to P9 documents. The plastic can was identified and marked as M.O.1. The trial court has finally found that the prosecution has succeeded in proving its case by adducing evidence and thus found that the accused is guilty of the offence under section 8(2) read with 8(1) of the Abkari Act and accordingly, convicted him thereunder. Finally the appellant is sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.1,00,000/- and in default he is directed to undergo simple imprisonment for one year for the offence under section 8(2) read with 8(1) of the Abkari Act. Set off is allowed. The challenge in this appeal is against the CRL.A.No.908 of 2011 **-3-** ## above finding and sentence. 3. As the appellant is undergoing imprisonment in pursuance of the judgment of the trial court, he preferred this appeal from the jail and on receiving the appeal, as ordered by this court, the Registry has appointed advocate Smt. Sheena E., from the panel of State Brief to prosecute the appeal for and on behalf of the appellant. Thus I have heard Smt. Sheena E. the learned counsel appearing for the appellant and Smt. A.Lowsy, the learned Public Prosecutor. 4. In order to prove the prosecution case, the prosecution mainly depends upon the evidence of PWs 1, 2, 5 and 6, the official witnesses, especially when PWs 3 and 4, the independent witnesses turned hostile. When PW1 was examined, who is the detecting officer, has deposed that when himself and party were on patrol duty and while they were proceeding from Mannadi to Pakistanmukku, they found the accused coming from the opposite direction holding a plastic can at a place in front of the reading room situated at Pandimalappuram in Kadampanadu village. According to PW1, on seeing them, the accused got perplexed and tried to CRL.A.No.908 of 2011 **-4-** leave the place abruptly. But on suspicion , they rushed near to him and intercepted. According to PW1, on inspection of the plastic can in the presence of witnesses, it was found that the same contained liquor and he confirmed the same by smelling and tasting as arrack and according to PW1, thereafter the accused was arrested and the contraband articles were seized as per Ext.P3 mahazar which contained the entire proceedings adopted by him for the seizure of the contraband article and arrest of the accused. He had also stated about the drawing of samples and sealing of the same etc as per the description contained in Ext.P3. During the examination of PW1, he had identified the accused in the court and the prosecution has got marked Ext.P1 arrest memo and Ext P2 arrest notice and Ext.P3 mahazar through PW1 and he had identified MO1 plastic can which was held by the accused at the time of the seizure. When PW2 was examined, he had also deposed in tune with the deposition of PW1. PW2 is the Excise Guard who accompanied PW1 during the patrol duty and at the time of the seizure of the contraband article and arrest of the accused. PW5 is the thondi Clerk attached to the Judicial CRL.A.No.908 of 2011 **-5-** First Class Magistrate Court-1, Adoor. PW5 has deposed before the court that he had received M.O1 and samples in the court on 11.9.2006 and the receipt of those articles were entered in the property register kept in the court vide T.R.348/06. According to PW5, the material objects and the samples, on production before the court contained labels and seal. He has also deposed that on the basis of Ext.P8, the samples were sent for chemical analysis. PW6 is the then Excise Inspector attached to the Excise Range, Adoor who registered the crime and conducted the investigation. When PW6 was examined, he had deposed that on receipt of the contraband article and the sample along with the accused from PW1 on 11.9.2006, he registered Ext.P5 crime and occurrence report and prepared Ext.P6 remand application on 11.9.2006 and produced the thondi items before the court after preparing Ext.P7 property list. According to PW6, the accused as well as MO.1 were produced before the court on 11.9.2006 itself. He had also deposed before the court that he prepared Ext.P8 forwarding note and filed before the court for sending the samples for chemical analysis. Ext.P8 is only a CRL.A.No.908 of 2011 **-6-** copy of the forwarding note and Ext.P9 is the chemical analysis report. Ext.P9 shows that the samples were reached in the laboratory on 16.9.2006 and on analysis of the sample, it was found that the sample contained 22.24% by volume of ethyl alcohol. It is relevant to note that the prosecution has cited and examined two independent witnesses, viz., PW3 and PW4 to prove the seizure and arrest of the accused. But both the independent witnesses turned hostile towards the prosecution. These are the evidence and materials relied on by the court below in support of its finding and thereby convicting the appellant which are under challenge in this appeal. 5. I have heard Smt. Sheena E, the counsel appearing for the appellant and Smt. Lowsy A, the learned Public Prosecutor, and I have also perused the judgment of the trial court and the evidence and materials on record. 6. The learned counsel for the appellant vehemently submitted that the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt. In support of the above contention, the learned counsel has pointed out that, regarding the actual place of occurrence, the CRL.A.No.908 of 2011 **-7-** prosecution has no specific and definite case and the evidence of the prosecution in this aspect is contradictory in nature. The learned counsel pointed out that PW1 deposed that the place of occurrence is 10 metres away from the cultural centre/reading room, whereas PW2 says that it was in front of the cultural centre. So according to the learned counsel, the evidence of the prosecution witness is contradicting each other with respect to the place of occurrence. Another contention raised by the learned counsel in support of her contention is that the contraband article including the plastic can contained no seal and the label, though PWs 1 and 2 have claimed to have affixed the label on the contraband article and the material objects. Thus according to the learned counsel, the evidence of the prosecution witness cannot be relied safely , to convict the appellant, especially, when the independent wintesses turned hostile to the prosecution. Therefore, according to the learned counsel, the finding of the court below is not correct and liable to be set aside. 7. Whereas the learned Public Prosecutor submitted that though the independent witnesses turned hostile, the CRL.A.No.908 of 2011 **-8-** evidence of official witnesses , particularly PWs. 1, 2, 5 and 6 are in tact and their evidence is supported by documentary evidence. According to the learned Public Prosecutor, in the absence of any serious discrepancies or contradictions, there is no legal impediment in acting upon the evidence of official witnesses and the finding arrived at by the trial court is correct and therefore, no interference is warranted with respect to the findings and the conviction recorded by the court below. 8. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the learned Public Prosecutor. 9. In the light of the rival contentions advanced by the counsel for the appellant and the learned Public Prosecutor, and in the light of the evidence and materials on record, the question to be considered is, whether the trial court is justified in its finding that the prosecution has succeeded in proving its case against the appellant beyond reasonable doubt and convicting the accused for the offence punishable under section 8(2) read with 8(1) of the Abkari Act. 10. The specific case of the prosecution is that while CRL.A.No.908 of 2011 **-9-** PW1 and 2 were on patrol duty and while they were proceeding from east to west, along Mannadi - Pakistanmukku road, they found the accused coming from the opposite direction holding a plastic can at a place in front of the reading room situated at Pandimalappuram in Kadampanadu village and on seeing them, the accused got perplexed and the party intercepted him and and on inspection of the plastic can in the presence of witnesses, it was found that the same contained arrack. Thereafter by drawing Ext.P3 mahazar, the samples were collected and the contraband article including the container were seized and the accused was arrested as per Exts.P1 and P2. The above substratum of the prosecution case sands proved through the evidence of PWs 1 and 2, the detecting officer and guard respectively,who accompanied the detecting officer. The learned counsel for the appellant submitted that regarding the place of occurrence there is conflicting version and contradictory evidence given by PWs 1 and 2. In the light of the submission made by the learned counsel, I have again gone through the deposition of PWs 1 and 2. On a close CRL.A.No.908 of 2011 **-10-** perusal of the same, anybody can understand that the place of occurrence is stated in different manner, and hence, same cannot be treated as conflicting or contradictory statement. When PW1 states that when they reached the spot, from a 10 metres distance, they saw the accused coming from the opposite direction, PW2 says that they saw the accused in front of the cultural centre. PW1 never deposed that the accused was found 10 metres away from the cultural centre. It is also relevant to note that the version adopted by PW1 found a place in Ext.P3 mahazar. In Ext.P3 mahazar also it is stated: “മണട� - പ�ക�സ�ന മ�ക� റ��ഡ�ല�ടട ക�ഴക�ന�ന� പട�ഞ�റ��ട� വരടവ ട� സ��സ�ക�ര�ക ന�ലയത�ന� ഉറ!ശ� 10 മ%റര അകടല വച� ഒര�ള തടന� വലത� കകയ�ല ഒര� കന�സ� ത�ക� പ�ട�ച�ടക�ണ� ഞങളകഭ�മ�ഖമ�യ� വര�നത� ക�ണ�ന�.” ## PW1 during the chief examination has stated : “മണട� - പ�ക�സ�ന മ�ക� റ��ഡ�ല�ടട ക�ഴക �ന�ന� പട�ഞ�റ��ട� വരടവ കടനന�ട� വ�റ7ജ�ല പ�ണ�മലപ��� എന സ��സ�ക�ര�ക റകന<ത� ട= 10 മ%റര ക�ഴക� എത�യറപ�ള ഒര�ള വലത� കകയ�ല plastic കന�സ� ത�ക� പ�ട�ച�ടക�ണ� വര�നത� കണ�” CRL.A.No.908 of 2011 **-11-** ## Whereras PW2 says : “പ�ണ�മലപ��� എന സലത� കടനന�ട� ന>�മപഞ�യത� വക സ��സ�ക�ര�ക ന�ലയ� ആ=� വ�യനശ�ല യ� ടട മ�നവശ� റ��ഡ�ട= വടക� ഭ�>ത വച�. ..........” (emphasis supplied) So according to me, there is no conflict or contradiction in the evidence of PWs 1 and 2 with respect to the place of occurrence. Another contention advanced by the learned counsel is to the effect that MO1 plastic can contains no label and seal and therefore the prosecution case cannot be believed. I am unable to sustain the above contention. When PWs 1 and 2 were examined, they have categorically stated about the procedure adopted in the seizure of the contraband article, particularly regarding the drawing of sample etc. They have mentioned about the label and affixing seal and signature etc. The above evidence of PWs.1 and 2 are corroborated as per Ext.P3 mahazar which is a contemporary document. When PW5 was examined, who is the thondi Clerk attached to the committal court, has stated that he received the thondi article and the materials on 11.9.2006 when produced as per Ext.P7 property list. Ext.P4 is the certified CRL.A.No.908 of 2011 **-12-** copy of the thondi list extract connected with the property received by PW5 as per Ext.P7 property list. Further, during the examination of PW5, he had categorically stated that when he received the materials as per Ext.P7 property list, the plastic can contained seal and the label. It is relevant to note that though the date of occurrence was on 11.9.2006 on which date the contraband article and the plastic can were produced before the committal court, the trial was undertaken during the month of November 2009 and closed on 7.3.2011. Therefore the only conclusion that can be arrived is that the label affixed on the can might have been destroyed by passing of time. The contention of the defence about the absence of independent evidence and accepting the evidence of official witnesses were elaborately dealt with by the trial court on the basis of the decision of this Court in **Vikraman v. State of Kerala** (2007(1) KLT 1010); **Sabu v. State of Kerala** (2007 (4) KLT 169) and **Abul Rasheed v. State of Kerala** (2008 (3) KLT 150). 11. In the light of the above discussion and the materials and evidence referred to above, I am also sharing the view of CRL.A.No.908 of 2011 **-13-** the Judge of the trial court that the prosecution has succeeded in proving its case against the appellant by adducing acceptable and convincing evidence. Accordingly, I confirm the finding and the conviction recorded by the trial court in favour of the prosecution. 12. The learned counsel for the appellant submitted that at the time of the incident, the accused was only at the age of 22 years and he has not involved in any other offence similar in nature and therefore, a lenient view may be taken in the matter of sentence, though the brother of the accused involved in several other abkari offence. 13. I have carefully considered the above submission of the learned counsel and according to me, the said submission requires positive consideration. In the present case, the contraband article involved is 1.5 litres of arrack and, at the time of the alleged offence, the accused was only at the age of 22 years. The social background of the accused and the fact that he is not involved in any other criminal case and the younger age of the accused at the time of the incident are relevant mitigating circumstances which persuade me to CRL.A.No.908 of 2011 **-14-** modify the sentence awarded by the trial court against the appellant. According to me, considering the above mitigating circumstances, the sentence of six months imprisonment would be sufficient to meet the ends of justice and while confirming the sentence to pay a fine of Rs.1,00,000/- (Rs.one lakh, only), the default sentence can be reduced into one month simple imprisonment. 14. In the result, the conviction of the appellant/accused under section 8(2) read with Section 8(1) of the Abkari Act is confirmed whereas the sentence of 3 years rigorous imprisonment is reduced into rigorous imprisonment for 6 months (six months) and while confirming the sentence to pay fine, the default sentence fixed by the trial court is modified and reduced the same into one month simple imprisonment. The detention of the appellant, as pre trial prisoner, is allowed to set off under section 428 Cr.P.C. 15. Subject to the above modification with respect to the sentence, confirming the conviction of the appellant, this Crl.Appeal is dismissed. In the light of the modification with respect to the CRL.A.No.908 of 2011 **-15-** sentence, according to me, the appellant is entitled to get released from jail forthwith, if he is not required in any other case. Therefore, the Registry is directed to send the gist of this judgment to the Superintendent, Central prison, Thiruvananthapuram, for appropriate action. **V.K.MOHANAN, JUDGE.** **Kvm/-** CRL.A.No.908 of 2011 **-16-**