Muraleedharan @ Kunhani v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** ## **MONDAY, THE 4TH DAY OF MARCH 2013/13TH PHALGUNA 1934** ## **CRL.A.No. 774 of 2005 ( )** **------------------------SC.224/2003 of ADDITIONAL SESSIONS COURT, FAST TRACK-I (ADHOC), MANJERI. CP.10/2003 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, NILAMBUR.** **................** **APPELLANT/ACCUSED:** **-----------------------------------** **MURALEEDHARAN @ KUNHANI, S/O.CHOZHIKUTTY, EAYYAKKADAN HOUSE, CHUNGATHARA AMSOM, UPPADA DESOM, NILAMBUR TALUK.** **BY ADV. SRI.K.P.MUJEEB.** **RESPONDENT(S): --------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.V.H. JASMINE.** **THIS CRIMINA L APPEAL HAVING BEEN FINALLY HEARD ON 04-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **V.K.MOHANAN, J.** ---------------------- Crl.A. No.774 of 2005 -----------------------Dated this the 5[th] day of March, 2013 ## JUDGMENT Challenging the conviction and sentence under Section 55 (a) of Abkari Act imposed vide judgment dated 18.04.2005 in S.T.No.224 of 2003 of the Court of Additional Sessions Judge Fast Track Court No.1 (AD HOC), Manjeri, the sole accused therein has preferred this appeal. 2. The prosecution case is that at about 4.30 p.m on 24.03.1998 accused was found in possession of four litres of illicit arrack in a plastic can having capacity of five litres at Kottakunnu-Chungathara, in violation of the provisions of the Kerala Abkari Act. 3. On the above allegation, Crime No.12 of 1998 of Nilambur Excise Range was registered against the accused and on completing investigation, charge was laid in the Court of Judicial First Class Magistrate, Nilambur whereupon C.P.No.10 of 2003 was instituted and subsequently by order dated 24.02.2003, the learned Magistrate committed the case to the Sessions Court where the same was received as S.C. No.224 of 2 Crl.A. No.774 of 2005 2003 and subsequently made over to the present trial court for disposal. 4. When the accused appeared the trial court framed a formal charge against the accused for the offences punishable under Section 55(a) and 8(1)(2) of Abkari Act which when read over and explained to the accused, he denied the same and pleaded not guilty and consequently the prosecution adduced its evidence by examining Pws.1 to 7 and producing Exts.P1 to P10 documents. MO1 is also identified as material objects. Finally, the trial court has found that the accused is guilty of the offence charged against him. On such conviction the accused/appellant is sentenced to undergo rigorous imprisonment for five years and to pay a fine of `1,00,000/- under Section 55(g). No separate sentence under Section 55(a) was awarded against him as arrack is the product of distillation. It is the above finding and order of conviction and sentence that is challenged in this appeal. 5. I have heard Advocate Sri.K.P.Mujeeb learned counsel for the appellant and the learned Public Prosecutor. 6. To prove the allegation, the prosecution mainly depends 3 Crl.A. No.774 of 2005 upon the evidence of PW1 and PW2 who are the officials involved in the detection of the crime. Among PW1 and 2, PW1 was the then Circle Inspector of Excise attached to Anti-narcotic Special Squad, Malappuram and PW2 was then working as Preventive Officer who accompanied PW1 at the time of the patrolling duty and detection of the crime. When PW1 was examined, he had deposed that on 24.03.1998, he was on patrolling duty around Chungathara and other areas in Nilambur Taluk along with Excise party and at a time about 4.30 p.m when the Excise party proceeding through a Panchayat lane leading to Gramapetty from Uppada, they found the accused carrying MO1 Can. According to PW1, on suspicion accused was intercepted and the contents of MO1 was verified by tasting and smelling and thus confirmed that the same was illicit arrack. According to PW1, M.O.1 Can was containing about 4 ½ litters of illicit arrack at that time. PW1 further stated about the proceedings adopted by him to arrest the accused and for seizure of the contraband article. Thus when PW1 was examined Ext.P1 arrest memo, Ext.P2 seizure mahazar were marked. Ext.P3 the occurrence report was also marked 4 Crl.A. No.774 of 2005 through PW1. Thereafter, according to PW1, they proceeded to the Excise Range Office, Nilambur where the accused and contraband article and the documents were entrusted to the officer-in-charge. PW2, as I indicated earlier is the then Preventive Officer who accompanied PW1 and he had also deposed in terms of the prosecution allegation particularly in tune with the deposition of PW1. It was PW2 who took the sample. PW3 is the then Preventive Officer who was in charge of the Nilambur Excise Range and when he was examined he had deposed that he received the accused and the properties from the official who was on Guard duty and according to him, he prepared Ext.P5 occurrence report. Beside Ext.P5, Ext.P6 property list and Ext.P7 forwarding notes are also marked through PW3. PW4 is the then Excise Circle Inspector who conducted investigation on 28.01.2000 and when he was examined he had deposed that he had inspected the place of occurrence. PW5 another investigating officer, involved in the investigation and who eventually laid the charge. When he was examined and Ext.P9 charge was marked through him. 5 Crl.A. No.774 of 2005 7. PW7 has also involved in the investigation and when he was examined, he had deposed that PW6 has given Ext.P10 statement. PW6 is an independent witness examined by the prosecution to prove the seizure and arrest of the accused but when he was examined he did not support the prosecution case and, therefore, he was declared hostile. During his examination he had deposed that he neither signed the document nor gave Ext.P10 statement. But during his cross examination at the instance of the learned Public Prosecutor, he had admitted that he had put his signature in Ext.P2 mahazar. He had also deposed that the accused was known to him for several years and he is a neighbour of the accused and they were in good friendship. It is on the basis of above evidence and materials the trial court has found that the accused has committed the offences charged against him. 8. The learned counsel for the appellant, sticking on the contentions taken before the trial court, strenuously submitted that the prosecution case cannot be believed since the place of occurrence is not correctly stated in any of the prosecution 6 Crl.A. No.774 of 2005 documents and the colour of the Can is not mentioned in Ext.P2 seizure mahazar. So on the basis of the above ground, according to the learned counsel, the trial court has committed wrong in convicting the appellant/accused and therefore the findings of the court below is factually incorrect and liable to be interfered with and accused/appellant is entitled to get an acquittal. 9. On the other hand, the learned Public Prosecutor has submitted that the entire prosecution evidence in all other respects is intact and in Ext.P2 seizure mahazar and in all other connected documents the prosecution has specifically mentioned about the place of occurrence as near to the house of one Mr.Ismail, in the road leading to Gramapetty from Upada Angady. It is the further submission of the learned Public Prosecutor that since all the property involved in the case and the documents reached the court without any delay, the nonmentioning of the colour of the Can which can be explained as an omission on the part of PW1, is not a ground to disbelieve the entire prosecution case. Thus according to the learned Public Prosecutor the trial court is correct in its findings and the 7 Crl.A. No.774 of 2005 ## conviction recorded against the appellant. 10. I have carefully considered the arguments advanced by the counsel for the appellant and the learned Public Prosecutor. I have carefully perused the judgment of the trial court and scrutinized the evidence and materials on record. In the light of the rival contention and in the light of the evidence and materials on record, the only question to be considered is whether the trial court is justified in its finding and convicting the appellant/accused for the offence under Section 55(a) and 8(1) of Abkari Act and sentencing the accused for the offence u/s.55 (g) of the Abkari Act. 11. I have already referred to the memorandum of evidence available in the present case. Though the prosecution witnesses were subjected to serious cross examination nothing was brought on record to discredit their version, and all the evidence of the prosecution are in intact and suffice to say the contraband article and connected documents are produced before the court without any delay. As I indicated earlier, the only contention advanced is that the exact place of occurrence is not mentioned by the 8 Crl.A. No.774 of 2005 prosecution. I am unable to sustain the above contention. In all the documents which are contemporary in nature, the prosecution has described the place of occurrence as:- “ÈßÜOâV ÄÞÜâAßW ºáCJù ¥¢Ö¢ ©M¿ çÆÖJí ©M¿ ¥BÞ¿ßÏßW ÈßKᢠd·ÞÎæMGß ®K ØíÅÜçJAí çÉÞµáK ÉFÞÏJí çùÞÁßÈøßµßÜáU ÉÞÄßÉáÜJí §ØíÎÏßW ÄÞÎØßAáK Õà¿ßÈí µßÝAá ÕÖ¢” The evidence of Pws.1 and 2 shows that at the relevant point of time the said Ismail was not available in the house which was remaining in a locked position. It is also relevant to note that when Pws.1 and 2 were examined no serious and effective cross examination was conducted to bring in any discrepancy with respect to the place of occurrence mentioned in the documents. It is also relevant to note that the signature of accused was also obtained on the label affixed on the MO1. The seal affixed on MO1 as per the evidence of Pws.1 and 2 are available and the same was intact. Thus with respect to the place of occurrence the available evidence shows that the contention advanced by the defence are unsustainable and unacceptable. As I indicated earlier, another contention advanced is that the colour of the Can 9 Crl.A. No.774 of 2005 is not mentioned in Ext.P2 seizure mahazar. According to me the failure on the part of the prosecution to mention the colour of the Can has no legal consequence. When Pws.1 and 2 examined they have deposed before the court that that was a bonafide omission. However, it is relevant to note that MO1 reached the court, on the date of the seizure itself and as such there is no scope for any alteration or introduction of any false evidence especially when the label on MO1 found intact. So the defect pointed out by the defence according to me are not sufficient to shake the prosecution case against the accused especially when the evidence are otherwise intact. 12. In the light of the above discussion and in view of the evidence on materials referred to above I find no reason to interfere with the findings of the court below and to set aside the conviction recorded by the court below against the appellant. But it is relevant to note that the contraband articles involved in the present case is arrack, as evident from Ext.P8 chemical analysis report. Still then, even though there was a charge to the offence u/s.8(1) of the Abkari Act, the trial court, has not specifically 10 Crl.A. No.774 of 2005 found that the appellant has committed the offence under that section. In view of the decision reported in **Jose v. State of Kerala** ( **2007 (2) KLT page 202) and Gopan v. State of Kerala (2007 (3) KLT page 443),** the exact offence proved against the appellant is under section 8(1) of the Abkari Act and accordingly I confirm the conviction of the appellant for the offence u/s.8(1) of Abkari Act. 13. The learned counsel for the appellant submitted that the sentence imposed on the appellant is disproportionate to the allegation and therefore a lenient view may be taken in the matter of sentence. According to me the above submission requires positive consideration. At the time of the alleged incident the accused was below the age of 32. Prosecution was no case that appellant is an habitual offender or he had involved any other similar case. The total quantity proved to have in the possession of the accused is only about four litters. Therefore, according to me, the sentence imposed on the appellant requires modification. Having regard to the facts and circumstances involved in the case and in the light of the mitigating 11 Crl.A. No.774 of 2005 circumstances pointed out earlier, the sentence of two and half years rigorous imprisonment will be sufficient to meet the ends of justice and while retaining the sentence of fine according to me the default sentence can be reduced into six months simple imprisonment. Thus in modification of the sentence imposed on the appellant by the trial court, the appellant is sentenced to undergo rigorous imprisonment for two and half years and also sentenced him to pay fine of `1,00,000/- for the offence under Section 8(2) of the Abkari Act instead of section 55(g) and default he is directed to under go simple imprisonment for a period of six months. In the result, this appeal is dismissed confirming the convicting the appellant for the offence under Section 8(1) of the Abkari Act but subject to modification with respect to the sentence to the extent indicated above. Accordingly, the bail bond if any, executed by the appellant is cancelled and the appellant is directed to appear before the trial court on 29.04.2013 to receive the modified sentence. If there is any failure on the part of the appellant in appearing before the court Crl.A. No.774 of 2005 12 below to receive the sentence as directed above, the trial court is free to take coercive steps to secure the presence of the appellant and to execute the sentence. Criminal appeal is dismissed accordingly. **V.K.MOHANAN JUDGE** mns/