Mohanan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.D.RAJAN THURSDAY, THE 17TH DAY OF MARCH 2016/27TH PHALGUNA, 1937 CRL.A.No. 1946 of 2004 (C) --------------------------- AGAINST THE JUDGMENT IN SC 72/2003 of ADDL.SESSIONS COURT (ADHOC)-II, KOZHIKODE APPELLANT/ACCUSED:: --------------------- MOHANAN, S/O. PERAVAKUTTY, VAYAPURATH MEETHAI, CHELANNUR AMSOM,, THAMARASSERY DESOM. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S)/COMPLAINANT & STATE:: ----------------------------------- 1. THE EXCISE INSPECTOR, CHELANNUR EXCISE RANGE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY PP SRI N SURESH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-032016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## P.D.RAJAN, J ......................................... Crl.A.No.1946 of 2004 ....................................... Dated 17[th] March, 2016 ## JUDGMENT This appeal is preferred by the accused against the conviction and sentence in S.C.72 of 2003 of additional Sessions Judge, Fast Track III, Kozhikode. The charge against the appellant is that on 3.4.2000, at 6 pm, accused was found in possession of 2 ½ litres of arrack on the road margin near to a culvert on the east of Puli bazar in Chelannur amsom, Thamarassery desom, Kozhiode Taluk by the Excise Inspector, Chelannur. He was arrested and the contraband articles were seized after preparing a mahazar. Reaching at the excise office, they registered a crime. After completing investigation, Excise Inspector, Chelannur laid charge before Judicial First Class Magistrate III, Kozhikode. From there the case was committed to Sessions Court, subsequently it was made over to the additional Sessions Judge. 2. During trial, prosecution examined five witnesses and marked Ext.P1 to P9 as documentary evidence. MO1 was admitted as material object. The incriminating circumstances brought out in evidence were denied by the accused while questioning him under Section 313 Cr.P.C. He examined DW1 Cra 1946/2004 2 as defence witness. After hearing both sides, learned additional Sessions Judge convicted the appellant to imprisonment for 1 ½ years and fine of Rs.1 lakh and in default, simple imprisonment for six months. Being aggrieved by that, he preferred this appeal. 3. The main contention advanced by learned counsel appearing for the appellant is that the defence evidence was not appreciated by the trial Judge while disposing the case. One Excise guard Soman is living in enmity with the appellant. Influencing the Excise Inspector, he foisted a false case and therefore appellant prays to set aside the conviction. 4. The learned Public Prosecutor strongly opposed the above argument and contended that there is no reason to interfere in this matter. 5. The occurrence was deposed by PW1, Excise Inspector, Chelannur. The oral evidence of PW1 shows that on 3.4.2000 at 6 pm, he arrived at the place of occurrence with excise party as a part of his routine patrol duty. Appellant was found carrying MO1 kannas at 5.30 pm and on seeing the excise party, he tried to escape from the place of occurrence. He intercepted the accused and inspected MO1 in which Cra 1946/2004 3 detected 2 ½ litres of arrack. He seized the arrack after preparing Ext.P2 mahazar. Independent witness present there attested Ext.P2. He also took 180 ml sample from MO1. The balance arrack and the sample were sealed at the place of occurrence. Ext.P2 is the seizure mahazar. Ext.P1 is the arrest memo. Reaching at the excise office, he registered a crime and occurrence report, Ext.P3. On the next day, accused was produced before court as per Ext.P4 report. The seized articles were also produced before court. Ext.P5 is the property list. He also prepared a forwarding note for sending the sample to the chemical examiner's lab. Ext.P6 is the forwarding note, the sample was examined in the chemical examiner's lab and Ext.P7 is the chemical examination report. PW1 admitted that one Soman had accompanied the patrol party. PW1 was cross examined by the defence counsel, but nothing has been brought out to discredit the oral testimony of PW1. 6. The Preventive Officer was examined as PW2, who supported the evidence of PW1. The evidence of PW2 shows that he accompanied PW1 to Puli bazar and saw the seizure of MO1 from the possession of appellant. He identified MO1 and Cra 1946/2004 4 seals affixed on it. He categorically stated that PW1 prepared the seizure mahazar and arrest memo. 7. The independent witnesses PW3 and 4 did not support the seizure. The oral evidence of PW3 shows that appellant was arrested from his house by the excise officials. PW4 prepared Ext.P9 site plan. PW5 conducted investigation and laid charge before court. 8. Analysing the evidence of PW1, 2, 4 and 5, it is found that the story narrated by PW1 is believable. In this context, I have examined the defence contention. Appellant examined DW1 in the trial court and stated that due to enmity towards one Soman, he falsely foisted a case. DW1 is the neighbour of appellant. His oral evidence shows that appellant was arrested from his house. Nothing was recovered from the possession of appellant as alleged by the prosecution. The present case was registered due to personal enmity. Even though such a contention was raised, no documents were produced to show that a false case was registered due to personal enmity with one Soman. Therefore the defence contention is to be discarded. Cra 1946/2004 5 8. This court in **Ravi V. State of Kerala** (2011(3) KLT 353) held as follows. “The prosecution, in a case of this nature can succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the Chemical Examiner by change of hands in a tamper-proof condition. (Vide **State of Rajasthan V. Daulath Ram** (AIR 1980 SC 1314) and **Valsala V. State of Kerala** (1993(2) KLT 550 (SC). No conviction can be entered against the accused in a prosecution as the present one unless it is proved that the samples which was analysed in the Chemical Examiner's laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused (See Sathi V. State of Kerala (2007(1) KLT SN 57(C.No.82) and Sasidharan v. State of Kerala (2007(1) KLT 720). There is no satisfactory link evidence to show that it was the same bottles seized from the appellant which eventually found their way into the hands of the Chemical Examiner and that there was no meddling or tampering with the bottles while they were in the custody of PW4. Hence, the result of Ext.P7 Chemical Analysis cannot be applied against the appellant”. The evidence in Ext.P6 forwarding note shows that Cra 1946/2004 6 proper sampling was taken at the time of seizure and subsequently it was produced before court in a tamper proof condition. Therefore, a conviction is possible on the basis of Ext.P7 chemical examination report. The sample seal was obtained in the forwarding note and accordingly he issued Ext.P7 chemical analysis report. No legal infirmity is attached to disbelieve the prosecution case. The conviction under Section 8(1) and (2) is only to be confirmed. The quantity of arrack seized from the appellant is 2 ½ litres only. Considering the nature of offence and the circumstances under which it was committed, I am of the opinion that 1 ½ years imprisonment in jail is an excessive sentence. Hence the sentence is modified as follows. Appellant is sentenced to imprisonment to 2 months and fine of Rs.1 lakh and in default of payment of fine, simple imprisonment for 15 days. The period of detention undergone by the accused during trial, investigation and enquiry shall be entitled to set off against the terms of imprisonment. Appellant is directed to surrender in the additional Sessions Court, Adhoc I to undergo the modified sentence, failing which learned additional Sessions Judge shall issue non bailable warrant Cra 1946/2004 7 forthwith. This appeal is allowed in part. P.D.RAJAN, JUDGE lgk