Moris Tellis & P. Dineshan v. State of Kerala & Station Head Officer, Manjeshwar Police Station

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 CRL.A.No. 710 of 2004(B) ---------------------------------- (AGAINST ORDER DATED 19.4.2004 IN SC.262/2003 ON THE FILE OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE(ADHOC) II, KASARAGOD) .................... APPELLANTS(S): ACCUSED: ------------------------ 1. MORIS TELLIS, 28/02, S/O. LADIN TELLIS METTUGUDDE HOUSE, KOLIYOOR VILLAGE. 2. P. DINESHAN, 21/02, S/O. NAGESH, THUMMINADU HOUSE, VORKADY VILLAGE. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS(S): STATE & COMPLAINANT: -------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. STATION HEAD OFFICER, MANJESHWAR POLICE STATION. BY PUBLIC PROSECUTOR SRI.M.R.VENUGOPAL. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 2.8.2011 , THE COURT ON 02/08/2011 DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.A.No. 710 of 2004 B** **----------------------------------------** Dated this the 2nd day of August, 2011 ## **J U D G M E N T** The appellants are the accused in Sessions Case No.262 of 2003 of the court of Additional Sessions Judge (AD HOC)-II, Kasaragod. In this appeal, they challenge their conviction and sentence under Section 55(a) of the Abkari Act. 2. The prosecution case is that at about 22.05 hours on 25.2.2002, the accused were found transporting 480 bottles of Indian Made Foreign Liquor (IMFL) containing 375 ml.each at Urni in Kodalamogaru Village and thereby, the accused had committed the offence punishable under Section 55(a) of the Abkari Act. 3. On the above allegation, Crime No.71 of 2002 was registered in the Manjeswar Police Station for the offence under Section 55(a) of the Abkari Act and on completing the investigation, the Police preferred a report before the Judicial First Class Magistrate Court, Kasaragod and the learned Magistrate took cognizance of the CRL.A.NO.710 of 2004 :-2-: said offence and instituted C.P.No.320 of 2002 and by proceedings dated 22.2.2003, the learned Magistrate committed the case to the Sessions Court where the case is received as S.C.No.262 of 2003 and subsequently, the said sessions case is made over to the trial court for disposal. 4. Thus, on the appearance of the accused before the trial court, a formal charge was framed under Section 55(a) of the Abkari Act, which was read over and explained to the accused and they pleaded not guilty and denied the charge. Consequently, the prosecution examined Pws.1 to 4 and produced Exts.P1 to P9. No evidence is adduced either oral or documentary from the side of the defence. Thus, on conclusion of the trial, the learned Sessions Judge has found that the prosecution has succeeded in establishing the unauthorized transportation of liquor by the accused and accordingly, they are found guilty under Section 55(a) of the Abkari Act and are convicted thereunder. On such conviction, the accused are sentenced CRL.A.NO.710 of 2004 :-3-: to undergo rigorous imprisonment for three years together with fine of Rs.1 lakh each and in default, they are further directed to undergo simple imprisonment for six months. Set off was allowed. It is the above conviction and sentence challenged in this appeal. 5. I have heard Sri.T.G.Rajendran, learned counsel appearing for the appellants and the learned Public Prosecutor. 6. In order to substantiate the above case of the prosecution, the prosecution mainly depends upon the evidence of PW3, the detecting officer and PW4 the officer, who conducted the investigation. PW1 is cited and examined to prove the seizure as he is shown as attestor in Ext.P1 seizure. But, PW1 turned hostile. PW2, who has also turned hostile, is cited and examined to show that he was the owner of the autorickshaw in question which is used by the accused for transporting the contraband article. When PW3 was examined, he had deposed that while he was in the station, he received information regarding the illegal transportation of IMFL and ## CRL.A.NO.710 of 2004 :-4-: according to PW3, on receiving the information, he and party proceeded to Daigoli in a Police jeep and according to him, while the Police jeep was turned to Daigoli-Adukkalakatta, they saw an autorickshaw coming from opposite direction. It is also deposed that in spite of the signal given by him to stop the autorickshaw, the autorickshaw turned back and proceeded to the opposite direction and according to PW3, they followed the vehicle and when the autorickshaw reached at Urni, the same was stopped and two persons alighted from the autorickshaw and escaped. According to PW3, he could not catch hold of the escaped persons, so, they turned back and inspected the autorickshaw bearing Registration No.KL-14-B-73. According to PW3, he identified first accused while first accused was in the autorickshaw as PW3 arrested him in previous occasion in another abkari case. It is the further deposition of PW3 that on inspection of the autorickshaw, he found 20 cardboard boxes each containing 24 bottles of 375 ml. Columbia whisky. According to him, ## CRL.A.NO.710 of 2004 :-5-: on further inspection of the vehicle, the registration book of the vehicle and driving licence of second accused were also found and the same were seized. He had also deposed that he took two bottles as sample and affixed label in the presence of independent witnesses. The entire proceedings connected with the seizure of the contraband article and the vehicle were recorded in Ext.P1 seizure mahazar. He had also seized the R.C.Book of the above numbered autorickshaw and the driving licence of second accused. Thus, Ext.P1 seizure mahazar, Ext.P2 F.I.R., Ext.P7 R.C.Book and Ext.P8 driving licence of second accused are proved through PW3. 7. PW4 is the then Additional Sub Inspector of Manjeshwar Police Station, who undertook the investigation on the basis of Ext.P2 F.I.R. registered by PW3. During his examination, PW4 has also deposed in tune with the deposition of PW3. According to him, he firstly proceeded to the place of occurrence and prepared Ext.P3 scene mahazar. Ext.P4 property list and Ext.P5 forwarding note are CRL.A.NO.710 of 2004 :-6-: prepared by PW4 and sent to the court. Ext.P6 is the chemical analysis report marked through PW4. PW9 has also sent Ext.P9 report to the Assistant Excise Commissioner for the confiscation of the vehicle. It is the above evidence and materials, which are relied on by the trial court, to convict the accused. 8. Sri.T.G.Rajendran, learned counsel appearing for the appellants vehemently submitted that no material objects are produced before the court, and as such there is lack of physical evidence. It is also the submission of the learned counsel that no inventory is prepared in this case with respect to the contraband articles and other materials allegedly seized by the prosecution. The most important point advanced by the learned counsel is that the prosecution has miserably failed to establish the identity of the appellants/accused and therefore, the appellants are entitled to get an acquittal. It is also the submission of the learned counsel that there is long delay in sending the samples to the laboratory. Thus, according to the learned counsel, CRL.A.NO.710 of 2004 :-7-: the learned Judge of the trial court, without properly appreciating the evidence and materials and the contentions raised by the defence, entered into a wrong finding and on the basis of such erroneous finding, convicted the accused and therefore, they are entitled to get acquittal. In support of the above contention, learned counsel heavily v. relied upon the decision of the Apex Court reported in **Noor Aga State of Punjab and Another** (JT 2008(7) SC 409) and also the Division Bench decision of this Court reported in **Ravi** v. **State of Kerala** (2011(3) KLT 353). 9. On the other hand, the learned Public Prosecutor strenuously submitted that all the material objects are produced before the committal court on 26.2.2002 itself and as per the specific order of the court, the material objects were returned to the Police for safe custody. It is also the submission of the learned Public Prosecutor that regarding the identity of the accused, there is sufficient evidence. The learned Public Prosecutor pointed out that PW3 has stated the CRL.A.NO.710 of 2004 :-8-: name of the first accused in Ext.P1 seizure mahazar itself, which is a contemporary document reached at the court on 26.2.2002 itself. Apart from that, PW3 has also deposed before the court that he had prior acquaintance with the first accused, who is happened to be arrested by PW3 connected with another abkari case. Inviting my attention to the answer given by the second accused, during his 313 statement and particularly his answer to the sixth question in 313, it is submitted that A2 has admitted that the driving licence i.e., Ext.P8 is seized by PW3 on 25.2.2002. The learned Public Prosecutor further submitted that even according to A2, the Police went to his house on 26.2.2002 and demanded for his licence. Thus, according to the prosecutor, the above circumstances are sufficient to hold that it was the appellants/accused, who committed the offence and their identity is proved properly. In the light of the fact that the contraband articles were produced before the court on 26.2.2002, the contention of the counsel for the appellants that there is no physical evidence, cannot CRL.A.NO.710 of 2004 :-9-: be accepted. Thus, the learned Public Prosecutor submitted that the seizure of the contraband article and the vehicle and the driving licence of the A2 and the R.C.Book of the autorickshaw are properly proved and those material objects as well as the documents reached in the court without any delay and therefore, the decision relied on by **Ravi's case** the counsel for the appellants in (cited supra) has no application and relevance in this case. So, according to the learned Public Prosecutor, no interference of this Court is warranted with respect to the findings and conviction recorded by the trial court. 10. I have carefully considered the arguments advanced by Sri.T.G.Rajendran, learned counsel appearing for the appellants and the learned Public Prosecutor. I have also perused the judgment of the trial court and evidence and deposition of the witnesses and other materials on record. 11. Having regard to the facts and circumstances involved in the case and especially in the light of the evidence and materials on CRL.A.NO.710 of 2004 :-10-: record and in the light of the rival pleadings, the question to be considered is whether the conviction and sentenced imposed by the trial court against the appellants in the impugned judgment is correct or not. As indicated earlier, the allegation of the prosecution is that the appellants/accused have transported 180 litres of IMFL unauthorisedly and illegally in an autorickshaw bearing registration No.KL-14-B-73, which was detected by PW3, in pursuance of an information received by him in the Police Station. When PW3 was examined, he deposed strictly in accordance with the prosecution allegation and his evidence is fully supported by the contemporary documents Ext.P1 seizure mahazar and Ext.P2 F.I.R. As per the documents marked by the prosecution, those materials reached in the court on 26.2.2002 itself, i.e., on the next day of the seizure of the contraband article and other materials. Learned counsel for the appellants strenuously submitted that absolutely, there is no legal evidence to show that the contraband articles, including the driving CRL.A.NO.710 of 2004 **==> picture [27 x 9] intentionally omitted <==** licence of A2 and R.C.Book of the autorickshaw reached in the court on the date as claimed by the prosecution. I am unable to sustain the above contention, since the documents itself speak against the contention of the learned counsel. On the reverse side of the property list, it is specifically endorsed as per the order dated 26.2.2002 of the Magistrate of the committal court, to return the articles to the Police as there was no sufficient space in the thondi room of the court. It is also further clear that the materials objects were re-submitted by the Police on 13.3.2002 and there is an endorsement to that effect on the bottom of the reverse side of Ext.P4 property list. In this juncture, it is relevant to note that Mr.T.G.Rajendran, the learned counsel has pointed out that according to PW3, during his cross-examination, he had deposed that the delay occurred in reaching Exts.P7 and P8 was because of the time taken for verification of those records. It is true that when PW3 was questioned, he had given such an answer, but the above answer is contrary to the endorsement by way of an order made CRL.A.NO.710 of 2004 :-12-: by the learned Magistrate in Ext.P4 property list, which I indicated earlier. As per the prosecution case, the role of PW3 is over by the registration of Ext.P2 F.I.R., in pursuance of the detection of the offence and seizure of the contraband article and handing over the same to PW4. It was thereafter, PW4 prepared Ext.P3 scene mahazar, Ext.P4 property list and Ext.P5 forwarding note and those documents were forwarded to the Magistrate. But, conspicuously, no question was put to PW4 with respect to the delay, if any, in reaching the property in the court. In the light of the above facts and evidence on record, I am of the view that absolutely, there is no delay in reaching the properties and the documents before the court. In the light of Ext.P4 property list and as per the endorsement on the reverse side of Ext.P4, there is physical evidence with respect to the contraband article and therefore, the decisions in JT 2008(7) SC 409 and 2011(3) KLT 353 cited supra relied on by the learned counsel for the appellants has no relevance. CRL.A.NO.710 of 2004 :-13-: 12. The other important point taken by the learned counsel for the appellants to assail the judgment of the trial court is with respect to the identity of the accused. The learned counsel vehemently submitted that the prosecution has miserably failed to establish the identity of the accused and in support of the above submission, it is further pointed out that though PW3 has stated during his deposition that he had prior acquaintance with the first accused, connected with the arrest of the first accused in another abkari case, no details are furnished by PW3 and therefore, the above version of PW3 cannot be accepted. It is also the submission of the learned counsel that because of the delay pointed out by the learned counsel, with respect to the production of Exts.P7 R.C.Book and Ext.P8 driving licence of A2, the finding of the trial court that A1 and A2 involved in the crime cannot be accepted. In this case, it is relevant to note that PW3 proceeded to the place of occurrence in pursuance of an information received by him over phone and CRL.A.NO.710 of 2004 :-14-: accordingly, he detected the offence and consequently, he had seized the contraband article, the vehicle used for transporting the contraband article and also the licence of second accused from the vehicle and Ext.P7 R.C.Book of the vehicle from the vehicle itself. As rightly pointed out by the learned Public Prosecutor, in Ext.P1 seizure mahazar itself, PW3 has stated the name of the first accused. When PW3 was examined in the court, first accused was present in the court and there was no failure on the part of PW3 to identify the first accused. It is also relevant to note that Ext.P8 driving licence of the second accused was seized from the very same autorickshaw from which contraband articles were seized. It is also relevant to note that the property list describes Ext.P7 R.C.Book and Ext.P8 driving licence of A2 and those documents also reached in the committal court on 26.2.2002 itself. So the above facts are sufficiently guaranteed the acceptability of the evidence of PW3. Besides the above, even according to A2, on 26.2.2002, the police party arrived at CRL.A.NO.710 of 2004 **==> picture [27 x 9] intentionally omitted <==** his home and demanded for the driving licence of A2. If the said version of the second accused is taken as true, the factum of the seizure of Ext.P8 on 25.2.2002 from the autorickshaw which is mentioned in Ext.P1 seizure mahazar, will stand proved. More over, during the 313 questioning, he had also admitted that Ext.P8 driving licence is that of himself, which was seized from the autorickshaw in question. It is also relevant to note that as I indicated earlier, though PW3 has stated that the delay that occurred in reaching Exts.P7 and P8 in the court is due to the time taken for verification of the same, the above statement is not correct in view of the endorsement contained on the reverse side of Ext.P4 property list and especially when no question was put to PW4, who actually prepared Ext.P4 and sent to the court. Thus, according to me, the argument advanced by the learned counsel with respect to the identity of the accused is also not sustainable and the same is liable to be rejected. 13. In the light of the above facts and evidence and materials CRL.A.NO.710 of 2004 **==> picture [27 x 9] intentionally omitted <==** referred above and in view of the discussion, I am of the view that the trial court is fully justified in its finding and convicting the appellants/accused for the offence under Section 55(a) of the Abkari Act. Accordingly, the conviction of the appellant under Section 55(a) of the Abkari Act is confirmed. 14. With respect to the sentence, learned counsel submitted that the contraband article is only Indian Made Foreign Liquor, which is not prohibited, and the quantity involved is only 180 litres and therefore, a lenient view may be taken in the matter of sentence. I find some force in the above submission. In this juncture, it is relevant to note that the first accused, at the time of commission of the offence, was only at the age of 28 years and the second accused was at the age of 21. Thus, according to me, 18 months of rigorous imprisonment is sufficient to meet the ends of justice, especially when the appellants/accused are youngsters. Thus, according to me, the substantive sentence imposed by the trial court can be modified and CRL.A.NO.710 of 2004 :-17-: reduced to 18 months of rigorous imprisonment and while confirming the fine and fine amount, the default sentence can be reduced into one month simple imprisonment. Accordingly, each of the appellants/accused is sentenced to undergo rigorous imprisonment for a period of 18 months and they are also sentenced to pay fine of `.1 lakh each and in default, each of them is directed to undergo simple imprisonment for one month. Set off is allowed under Section 428 of Cr.P.C. In the result, this appeal is disposed of confirming the conviction of the appellants under Section 55(a) of the Abkari Act, but subject to the modification with respect to the sentence as indicated above. Accordingly, the bail bond, if any, executed by the appellants is cancelled and they are directed to surrender before the CRL.A.NO.710 of 2004 :-18-: trial court within one month from today, to receive the modified sentence. **V.K.MOHANAN, Judge** MBS/ CRL.A.NO.710 of 2004 :-19-: ## **V.K.MOHANAN, J** . CRL.R.P.No. 69 OF 2001 **ORDER** Dated:23.6.2011 ## CRL.A.NO.710 of 2004 :-20-: