Muraleedharan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN WEDNESDAY, THE 23RD DAY OF MAY 2012/2ND JYAISHTA 1934 CRL.A.No. 132 of 2007 ( ) ------------------------SC.17/2002 of ADDL. DISTRICT COURT (ADHOC)-1, KOLLAM APPELLANT/ACCUSED: -------------------- MURALEEDHARAN, S/O. REMADEVAN, KOCHUVEETTIL THARAYIL, KOLLAYKKAPURAM MURI KULASEKHARAPURAM VILLAGE, KARUNAGAPPALLY KOLLAM DISTRICT. BY ADV. SRI.B.MOHANLAL RESPONDENT/COMPLAINANT: -------------------------- STATE OF KERALA, REPRESENTED BY THE EXCISE RANGE INSPECTOR, KARUNAGAPPALLY KOLLAM DISTRICT, THROUGH THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI P.M. SANEER THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 2305-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: kvm/- ## **V.K.MOHANAN, J.** **---------------------------------------Crl.A. No. 132 of 2007 ----------------------------------------** Dated this the 23rd day of May, 2012. ## **J U D G M E N T** The sole accused in S.C.No.17 of 2002 of the court of Additional District and Sessions Judge (Adhoc) court-I, Kollam, is the appellant as he is aggrieved by the judgment dated 6.1.2007 in the above Sessions Case by which he is convicted and sentenced for the offence under section 55(1) of the Abkari Act. 2. The prosecution case is that, on 29.11.1999 at 3 p.m. the accused was found transporting 2 ½ litres of arrack at the road in front of the pan shop of one Vanajakshi, Sudha Bhavanam, Kottakkapuram muri, Kulasekharapuram village, Karunagappally Taluk, and thus the accused has committed the offence for which he is convicted. The accused was arrested from the spot along with the contraband article and crime No.177/1999 was registered in the Excise Range, Karunagappally. On completing the investigation, report was filed in the Judicial First Class Magistrate, Karunagappally, wherein C.P.No.72/99 was instituted and subsequently, by 2 Crl.A. No. 132 of 2007 order dated 29.2.1999 in the above committal proceedings, the learned Magistrate committed the case to the Sessions Court wherein the above Sessions Case was instituted and subsequently, the same is made over to the court of Principal Assistant Sessions Judge, Kollam and subsequently transferred to the present trial court. On appearance of the accused, after hearing the prosecution as well as the accused, a formal charge was framed for the offence under section 55 (a) of the Abkari Act and, thereafter, the trial was further proceeded since the accused denied the charge. During the trial of the case, PWs 1 to PW6 were examined from the side of the prosecution and marked Exts.P1 to P6(a). Besides that, M.O-1 can was produced and marked as material object. No evidence, either oral or documentary, was produced from the side of the defence. The trial court finally found that the accused was found possessing and carrying arrack as alleged by the persecution and accordingly he is convicted for the offence under section 55(a) of the Abkari Act and, on such convection, the appellant is sentenced to undergo rigorous imprisonment for a term of two years and to pay a fine of 3 ## Crl.A. No. 132 of 2007 Rs.1,00,000/-, in default, to undergo simple imprisonment for a period of one year. Set off is allowed. It is the above finding and order of conviction and sentence are challenged in this appeal. 3. The prosecution allegation is that the appellant/accused was found in possession of 2 ½ litres of arrack in M.O-1 can. According to the prosecution, when PW1 and 6 were on patrol duty, on 29.11.99, and when they reached at Kochuveettil mukku in front of the petty shop of one Vanajakshi, the accused was found holding black can at the Panchayat road leading to the Chantha mukku Junction. According to PW1 and 6 , on seeing the Excise Party, the accused tried to escape but the party intercepted and questioned him. According to PWs 1 and 6, the accused was holding can of 2 1/2 litres capacity with full of liquid and when the same was tested in the presence of witnesses by taste and smell, the liquid in M.O-1 can was identified as arrack. According to PWs 1 and 6, the accused was arrested then and there and the contraband articles were seized as per Ext.P1 mahazar. While PW1 was examined, Ext.P1 4 ## Crl.A. No. 132 of 2007 seizure mahazar was proved. According to the prosecution, PW6 had prepared Ext.P6 arrest memo and he had informed the arrest to the mother of the accused, namely, Sarasamma, as per Ext.P6(a) arrest notice, which contained the signature of the said Sarasamma. As per the evidence of PW1 and others, after completing the seizure and arrest of the accused, PW6 took the accused and the contraband articles to the excise range office and entrusted the same with PW4, the then Excise Inspector, Karunagappally. Ext.P1 seizure mahazar contained all the details including the place of occurrence, place of seizure and arrest of the accused etc. When PWs 1 and 6 were examined, they had identified the accused and also MO-1 thondi item. The prosecution has also cited and examined two independent witnesses to prove the seizure and arrest of the accused, but they turned hostile and they denied the signature in Ext.P1 seizure mahazar. PW4, with whom the accused as well as the contraband articles were entrusted with, prepared Ext.P2 occurrence report and registered crime No.177/99. PW4 produced the accused in the committal court with Ext.P3 5 ## Crl.A. No. 132 of 2007 remand report dated 29-11-99 at 6 p.m. PW4 has also produced the property and the records in the court by entering the details in Ext.P4 property list on the same day. As there was no sufficient space in the court, as evidenced from Ext.P4 property list, after taking the sample, the residue returned to PW4 for safe custody. When PW4 was examined, Exts.P2, P3 and P4 documents were marked through him. Ext.P5 chemical analysis report was also marked through PW4. According to Ext.P5 report, the samples contained ethyl alcohol at the rate of 11.45 per cent by volume. These are the evidence referred to and relied on by the learned Judge of the trial court in support of his finding and recording the conviction against the appellant. 4. The learned counsel for the appellant submitted that the prosecution has miserably failed to prove the case against the appellant. According to the learned counsel, what all evidence adduced by the prosecution is only interested evidence and the evidence of the prosecution witness is not corroborated by any independent evidence. It 6 ## Crl.A. No. 132 of 2007 is also the submission of the learned counsel that the seizure was effected in violation of the mandatory provisions of the Abkari Act and the contraband articles were not produced in the court. It is the specific contention of the learned counsel that MO-1 was not taken from the place of occurrence. It is also the contention of the learned counsel that in the material object, there was no proper slip signed by the Excise Inspector and there was no personal seal of the Excise Inspector and therefore the seizure is bad in the light of the decision in **Ali v. State of Kerala** (2001 (2) KLT 389). It is also submitted that there is delay in producing the thondi articles in the Court below and therefore, the findings of the court below is liable to be set aside in the light of the decision reported in **Alex v. State** (2003(1) KLT (SN) 9 (case No.12). It is also the submission of the learned counsel that the sentence awarded against the appellant is exorbitant and highly disproportionate to the allegation raised against the appellant. 5. On the other hand, the learned Public Prosecutor submitted that the evidence of PW1 and PW6 positively proved 7 Crl.A. No. 132 of 2007 the arrest of the accused and the seizure of the contraband article from the spot are elaborately mentioned in Ext.P1 seizure mahazar. It is the further submission of the learned Public Prosecutor that the accused as well as the contraband articles were produced before the court on the date of the occurrence itself ands there was no delay in producing the contraband article in the court below. It is the further submission of the Public Prosecutor that, though the independent witness turned hostile, there is no illegality in accepting the evidence of the official witnesses, especially, when the said evidence of the official witnesses are free from infirmities or contradictions. Thus, According to the learned Public Prosecutor, no interference is called for. 6. I have carefully considered the submissions of the learned counsel for the appellant as well as the learned Public Prosecutor and I have perused the judgment of the trial court and the evidence and materials on record. 7. In the light of the contentions advanced by the learned counsel for the appellant as well as the learned Public Prosecutor, and on perusing the evidence and materials in 8 ## Crl.A. No. 132 of 2007 this case, the question to be considered is whether the trial court is justified in its finding and convicting the appellant. 8. The crux of the prosecution allegation is that the appellant/accused was found in possession of 2.5 litres of arrack at about 3 p.m. on 29.11.99. In order to substantiate the above allegation, the prosecution mainly depends upon the evidence of PWs 1 and 6. PWs 1 and 6 are the then Preventive Officers attached to the Excise Range Office, Karunagappally. According to these witnesses, while they were on patrol duty and when they reached at Kochu veettil mukku in front of the petty shop of Vanajakshi, the road leading to Ampadi mukku, they have seen the accused holding a black can at the panchayat road leading to Chanthamukku junction. According to these witnesses, on seeing the excise party, the accused got perplexed and when he tried to escape he was intercepted and questioned and thus PW6 and PW1 realised that the liquid contained in MO1 can was arrack and accordingly, the accused was arrested from the spot and the articles were seized. Contemporary documents Ext.P1 seizure mahazar, Ext.P6 arrest memo and 9 Crl.A. No. 132 of 2007 Ext.P6(a) arrest notice ensure correctness of the deposition of PWs 1 and 6 as the same are contemporary documents. It is true that though the prosecution has cited PWs 2 and 3, the independent witnesses, to prove the arrest of the accused and the seizure of the contraband article, they turned hostile. PW2 and 3 have categorically admitted that they are neighbours of the accused, therefore it is clear that they turned hostile to the prosecution to save the accused. There is no rule that, unless and until the evidence of official witnesses are corroborated by independent evidence, their evidence cannot be believed or acted upon. In the present case, as I indicated earlier, the testimony of PWs 1 and 6 are free of any contradictions or infirmities. Though PWs 1 and 6 were subject to lengthy cross examination, nothing is brought on record to discredit their version. Moreover, the evidence of PWs 1 and 6 is corroborated by the contemporaneous documents like Ext.P1 seizure mahazar, Ext.P6 arrest memo and Ext.P6(a) arrest notice. Therefore, according to me, even though PWs 2 and 3 turned hostile, there is no legal bar in acting upon the evidence of PW1 and 10 Crl.A. No. 132 of 2007 PW6. It is also relevant to note that, according to PWs 1 and 6, on completing the seizure and the proceedings connected with the arrest of the accused, they proceeded to the excise range office and entrusted the accused and the contraband article with PW4 who was the Excise Inspector, who in turn prepared Ext.P2 occurrence report and Ext.P3 remand application , Ext.P4 property list and thereafter produced the accused as well as the contraband article in the court on the date of the occurrence itself. Therefore, there is no delay, either in producing the accused or the contraband article, in the court. Though the defence set up a contention to the effect that there was delay in producing the contraband article in the court, the documentary evidence and the endorsement in Ext.P4 property list itself show that the contraband articles produced in the court on 29.11.99 itself. Further, Ext.P5 chemical analysis report shows that the samples sent from the court as per letter TR 455/99 and the sample contained 11.45 per cent of ethyl alcohol by volume. 9. From the facts referred to above, and the 11 Crl.A. No. 132 of 2007 evidence relied on by the learned Judge of the trial court, which I already referred, shows that the appellant/accused was found in possession of 2 1/2 litres of arrack, who was arrested along with the contraband articles on 29.11.2009, and produced the accused as well as the contraband article in the court on the same date. The appellant has miserably failed to point out any defect in the investigation. The evidence of prosecution remains in tact which positively proved and the same are sufficient to prove the allegation against the appellant. Therefore, according to me, the learned Judge of the trial court is fully justified in his finding and recording the conviction against the appellant under section 55(1) of the Abkari Act,. Accordingly the conviction is confirmed. 10. The learned counsel for the appellant submitted that the appellant was at the age of 39 years at the time of the incident and there is no allegation that he is a habitual offender or involved in similar case. Therefore, the counsel submits that a lenient view may be taken in the matter of sentence. Having regard to the facts and circumstances 12 ## Crl.A. No. 132 of 2007 involved in this case, according to me, the above submission requires a positive consideration. As per the allegation of the prosecution, accused was found 2 ½ litres of arrack and the prosecution has no case that he had involved in any previous crime similar in nature. On an over all consideration of the facts and circumstances , according to me, the sentence requires modification. Accordingly, in modification of the sentence awarded by the trial court against the appellant, the appellant is sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,00,000/(Rs.one lakh only) and in default, he is directed to undergo rigorous imprisonment for 3 months. Set off is allowed. In the result, this appeal is dismissed confirming the conviction of the appellant for the offence punishable under section 55(1) of the Abkari Act but subject to the modification with respect to the sentence to the extent indicated above. The appellant is directed to surrender in the trial court on **23.6.2012** to receive the modified sentence. If there is any default on the part of the appellant in appearing before the trial court, as directed above, the trial court is free to take 13 Crl.A. No. 132 of 2007 coercive steps to secure the presence of the appellant and to execute the sentence. **V.K.MOHANAN, JUDGE.** kvm/-