Maria Kastoohi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **WEDNESDAY, THE 04TH DAY OF DECEMBER 2019 / 13TH AGRAHAYANA, 1941** ## **CRL.A.No.236 OF 2010** **AGAINST SC 305/2008 DATED 14-01-2010 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA** ## **APPELLANT/2ND ACCUSED:** **MARIA KASTHOORI W/O CHELLADURAI 6TH MURI LAYAM, K.K.DIVISION, ELLAPETTY ESTATE, K.D.H.VILLAGE.** **BY ADVS. SRI.RENJITH B.MARAR SMT.LAKSHMI.N.KAIMAL SRI.L.RAJESH NARAYAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **SRI.P.N.SUMODU,PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28-112019, THE COURT ON 04-12-2019 DELIVERED THE FOLLOWING:** **-:2:-** Crl.A 236/10 ## **Dated this the 4[th] day of December, 2019** ## **JUDGMENT** This appeal is filed by the 2[nd] accused in S.C. No. 305 of 2008 on the files of the Additional Sessions Court (Adhoc)-II, Thodupuzha, convicted and sentenced for the offence punishable under Section 8(2) of the Abkari Act (for short 'the Act'). She was sentenced to undergo Simple Imprisonment for two years and to pay a fine of Rs.1,00,000/- with default sentence of another Simple Imprisonment for three years. The 1[st] accused in S.C. No. 305 of 2008 tried along with the 2[nd] accused was, however, acquitted by the sessions court as per the impugned order. 2. She was charge-sheeted along with her husband, 1[st] accused, by the Sub Inspector of Police, Munar on the allegation that both of them were found to be in possession of 2½ litres of arrack concealed in MO1 steel vessel in their residential house in K.K.Division Ellapetty Estate in KDH Village on 27.10.2007 at 6.25 p.m. and selling arrack to a Crl.A 236/10 **-:3:-** customer and both of them committed offence punishable under Section 8(2) of the Act. 3. PW3 who detected the offence is said to have received a secret information and proceeded to the place of occurrence along with his party men and before reaching the place of occurrence, he prepared a search memo and after forwarding the same to court, conducted search of the house of the accused. It is stated that when the police party came to the house, the 1[st] accused was found in possession of MO1 steel vessel containing arrack held in his hands and his wife, the appellant herein, holding a glass tumbler and selling the same to a customer examined as PW1. Seeing the police party, the 1[st] accused fled away from the place and he could not be apprehended though he was chased. The 2[nd] accused/appellant herein was intercepted and after PW3 conducting smell and taste test of contents in steel vessel and being convinced that the liquor was arrack, apprehended the appellant at 6.30 p.m. Immediately thereafter, the sample of arrack was collected Crl.A 236/10 **-:4:-** in 180 ml. of bottle and it was sealed and labelled in accordance with law. The rest of the arrack found in the steel vessel was collected in three other bottles and they too were sealed and labelled by PW3 in accordance with law. Evidencing search, seizure and arrest in compliance with alleged legal formalities, Ext.P1 search list was prepared at the spot signed by one of the members of the party and an independent witness. The material objects and the arrestee were brought to the station house immediately and Ext.P5 FIR was registered against the appellant and her husband. It is stated that the next day, the material objects and appellant were produced before the committal court and investigation was also conducted by PW3. He submitted to court Ext.P7 forwarding note containing his personal seal and sought 180 ml. of sample to be forwarded to a chemical laboratory for obtaining test result after analysis. He himself prepared the final report and laid the same before the committal court. 4. After the case was committed to the court of Crl.A 236/10 **-:5:-** Sessions, Thodupuzha, it was made over to the Additional Sessions Court (Adhoc)-II, Thodupuzha where charge was framed against the appellant and the 1[st] accused for the offence punishable under Section 8(2) of the Act which both of them denied when it was read over and explained to them. 5. On the side of the prosecution, PWs 1 to 3 were examined and prosecution adduced Exts.P1 to P10 and MOs 1 to 5 in evidence. The defence of appellant before the court below was that she was falsely implicated and that the contraband liquor was not taken from her possession at all. She did not adduce any evidence even though she was called upon to enter on defence. 6. I heard the learned counsel for the appellant and the learned Public Prosecutor. 7. The court below considered the evidence of PW3 the detecting officer to be trustworthy and held on the basis of Ext.P1 search list and Exts.P4 and P8 arrest records prepared by the officer that the appellant committed the Crl.A 236/10 **-:6:-** offence punishable under Section 8(2) of the Act. The benefit of doubt was however given to her husband since the person who was found along with appellant at the residential house could not be identified on the spot nor apprehended, since he had fled away from the scene of occurrence. The customer to whom the arrack was allegedly sold turned hostile when he was examined as PW1. There were no other independent witnesses present to witness either the search or arrest of the appellant. Nevertheless the court below held that the evidence of PW3 was sufficient to prove the involvement of appellant in the crime. PW2, the Secretary of Devikulam Grama Panchayat proved on the basis of Ext.P2 residential certificate that appellant's husband was the occupant of Door No.2/1217 in K.K.Division Ellapetty Estate in KDH Village. PW1 though having turned hostile proved that the appellant is the wife of the 1[st] accused and both of them were residing together in Door No.2/1217. His evidence was neither disputed nor he was cross-examined. The court below found that there was Crl.A 236/10 **-:7:-** no delay in production of material objects and there was compliance with all legal formalities at the time of arrest and seizure of liquor from the possession of the appellant. The liquor sent for chemical test revealed that it contained 28.14 volume of ethyl alcohol as per Ext.P10 chemical report. No materials could be found placed before the court below giving any room for a doubt that the appellant did not possess arrack at the place of occurrence and commit offence punishable under Section 8(2) of the Act. 8. Learned counsel for the appellant raised several contentions assailing the impugned judgment of conviction and sentence. It was contended that the first accused having been acquitted, appellant might also be given the benefit of doubt arising from the same circumstances. It was further contended that the court below failed to notice that PW3 detected, investigated and laid final report before the court and the conduct of the officer prejudiced the rights of the appellant. It was further submitted that the search conducted was not in accordance with the principles of Crl.A 236/10 **-:8:-** search and non-examination of the woman police constable, who is alleged to have arrested the appellant, was not taken serious notice of. It is also one of the arguments that the purported search was conducted otherwise than in the presence of independent witnesses and this itself has affected the veracity and reliability of the search of the place and also arrest of the appellant. Relying on the decision of this Court in **Radha and Another v. State of Kerala** (2008 (4) KHC 267) learned counsel for the appellant submitted that in the absence of seizure of contraband liquor being proved through independent witnesses, conviction based on the sole testimony of the official witnesses cannot be considered to be proper and legal. It was also contended that in any view of the matter the materials on record did not disclose that the appellant was in conscious possession of the liquor relying on a decision reported in **Narayanan Potti and Others v. Krishnan Potti** (1961 KHC 119). 9. It is true that there is no independent witness or Crl.A 236/10 **-:9:-** evidence to support the evidence of PW3 as regards search of the premises, seizure of the contraband liquor and arrest of the appellant from the place of occurrence. It is also true that same officer detected, investigated and laid final report also. There is no rigid principle of law that only because the same officer played multiple roles, his evidence should be discarded as untrustworthy. Evidence of a police officer is entitled to be treated differently from an ordinary witness since the act of a witness performed in an official capacity is regarded by law to be correctly and legally performed. Unless his evidence is shown to be vitiated by undue motives or reasons, there is nothing in law providing that accused shall always be presumed to have suffered prejudice on account of the same officer detecting, investigative and prosecuting the accused. So far as the present case is concerned, it is noticed that the appellant has no allegation that PW3 has any personal grudge or any false motive to falsely implicate her. No suggestion in that respect was put to this witness while he was cross- Crl.A 236/10 ## **-:10:-** examined. While questioned under Section 313 of Cr.P.C. also, the appellant did not come out with any allegation that PW3 had any reasons or motives for initiating a false prosecution against her. The facts in **Radha and Another v. State of Kerala** (2008 (4) KHC 267) relied on by the learned counsel for the appellant are clearly distinguishable and therefore is of any assistance to the appellant. 10. The evidence given by PW3 discloses that he along his search party came to the place of occurrence on 27.10.2007 at 6.25 pm on obtaining a secret information and before proceeding to the place of occurrence, he prepared a search memorandum also. This memorandum was marked as Ext.P3. It is seen from Ext.P3 that PW3 prepared the memorandum before proceeding to the spot. He said that when he and others came in front of the house in K.K.Division Ellapetty Estate in KDH Village, the appellant was found carrying a glass in her hands and receiving liquor from MO1 steel vessel poured by the husband, for serving a customer. The customer who was examined as PW1 was Crl.A 236/10 ## **-:11:-** also found being present at the place for buying liquor. When the 1[st] accused escaped seeing the police party, she was intercepted. The cogent evidence given by PW3 is that the 1[st] accused immediately after seeing police party entrusted her with the steel vessel and she was also in a state of serving arrack to PW1. The lower court did not find any reason to disbelieve this version of PW3 at all. I also do not find any ground to disbelieve the evidence of PW3. The argument of the learned counsel for the appellant that the appellant was not proved to be in conscious possession of the liquor therefore falls to ground. 11. Ext.P1 search list shows that she was arrested by a woman police constable. Non-examination of her cannot be taken as a reason for accepting the defence contention that she was not arrested at the spot. Exts.P6 and P8 arrest records sufficiently prove that she was arrested at the spot itself. Merely because PW1, who was cited as independent witness to search, turned hostile, credibility of search, seizure and arrest cannot be suspected. Crl.A 236/10 ## **-:12:-** 12. The materials on record show that search conducted was fully in accordance with law. It is true that one of the witnesses to search is a Police Constable attached to the patrol party. PW3 explained the reason for not securing attendance of one more witness in addition to PW1. He said that none was prepared to witness search despite efforts taken by him to secure their presence. In my view, this must be true also. The place of occurrence is a line building where the occupants of the adjoining rooms might be persons living in close cordiality with the appellant. The court below also observed that the prosecution has given cogent reasons for not being able to secure independent witnesses as required by law. I have already said that PW1, one of the independent witnesses, turned hostile to the prosecution. Search in the absence of independent witnesses by itself is not either illegal or capable of affecting the credibility of search provided the court is satisfied that the search conducted by the officer is trustworthy. Crl.A 236/10 **-:13:-** 13. No suspicious circumstances were brought on record to show that there was attempt on the part of the officials to falsely implicate the appellant. The arrival of contemporaneous records before court without delay and also production of material objects simultaneously with production of appellant are circumstances which rule out chances for false implication of appellant in the crime. Ext.P1 search list reached the court the very next day. Ext.P6 property list shows that material objects were produced in court on 28.10.2007, immediately the next date of occurrence. Ext.P1 search list and seizure mahazar contained the personal seal of the detecting officer, which tallied with the seal affixed in the sample bottles as well as Ext.P7 forwarding note. Ext.P5 FIR registered by PW3 also reached the court on the very next date of detection. When the testimony of PW3 is taken along with the procedural formalities carried out by him at the place of occurrence, there is no reason to suspect that a false case was hoisted against the appellant. Crl.A 236/10 **-:14:-** 14. Ext.P1 shows that sample was taken in 180 ml. of bottle and it was sealed and labelled in accordance with law. The steel vessel and the remnants of liquor collected in other three bottles were also similarly sealed with personal seal of PW3 and the labels signed by the witnesses were also affixed on them **.** Compliance with any of these formalities is not challenged in the cross-examination of PW3. I am satisfied that the sample taken from the place of occurrence reached the court in the same state and it remained in safe custody of the officials. Ext.P10 chemical analysis report has proved that the liquor tested contained 28.14 volume of ethyl alcohol. The report as well as the evidence given by PW3 shows that the liquor possessed by the appellant was arrack. 15. On appreciation of entire materials on record, I also agree with the finding of the court below that appellant committed offence punishable under Section 8(2) of the Act. Though it was argued that she was entitled to the benefit of acquittal in the same way as her husband was Crl.A 236/10 **-:15:-** acquitted, there is no reason to accept the same argument since he was acquitted in a set of different circumstances as already mentioned in this judgment. Therefore, conviction of the appellant for offence under Section 8(2) of the Act is confirmed. 16. But it appears that the sentence imposed on her is rather excessive. Simple imprisonment for two years and fine appear to be disproportionate to the degree of crime committed. Sentence therefore requires to be reasonably modified for ends of justice. In my view, substantive sentence of imprisonment for three months will meet ends of justice. In the result, appeal is partly allowed reducing the sentence of simple imprisonment to three months. She will pay sentence of fine of Rs.1,00,000/- also failing which she would undergo another simple imprisonment for one month more. She will get the benefit of set off as usual. Sd/- ## **T.V.ANILKUMAR,JUDGE** vps/dst