Nanu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 3RD DAY OF NOVEMBER 2015/12TH KARTHIKA, 1937** **CRL.A.No. 1726 of 2004 ( ) ---------------------------** **AGAINST THE JUDGMENT IN SC 28/2003 of ADDL.SESSIONS COURT (ADHOC)-II, KOZHIKODE DATED 08-10-2004** **APPELLANT/ACCUSED:** **-----------------** **NANU, S/O. CHATHU, AGED 41 YEARS, KADUKUZHIYIL HOUSE, IRINGAL AMSOM DESOM KOYILANDY TALUK.** **BY ADV. SRI.SUNNY MATHEW** ## **RESPONDENT/COMPLAINANT:** **-----------------------** **STATE OF KERALA THROUGH EXCISE INSPECTOR, QUILANDY, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR SRI.JIBU P.THOMAS** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-11-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K. RAMAKRISHNAN, J.** .................................................. Crl.A.No.1726 of 2004 ....................................................... Dated this the 3[rd] day of November, 2015 ## **JUDGMENT** The accused in S.C.No.28/2003 on the file of the Additional Sessions Court, Adhoc-II, Kozhikode is the appellant herein. The appellant was charge sheeted by the Excise Inspector, Koyilandy excise range in Crime No.17/2000 of that range under section 55(a) of the Abkari Act. 2. The case of the prosecution in nutshell was that, on 25.7.2000, at about 1.30 p.m, the accused was found to be in possession of 5 litres of arrack in a 10 litre plastic can and found transiting the same through the pathway which leads from Kuvvappuram junction to Azhikkal Kadav in Iringal amsom desom of Quilandy taluk in violation of the provisions of the Abkari Act and thereby he had committed the offence punishable under section 8(1) of the Abkari Act. 3. After investigation, final report was filed before the Judicial First Class Magistrate Court, Koyilandy where it was taken on file as C.P.No.382/2002. After complying with the formalities, the leaned Magistrate committed the case to Sessions Court, Kozhikode under section 209 of the Code of Crl.A.No.1726 of 2004 2 Criminal Procedure (hereinafter referred to as 'the Code'). After committal, the case was taken on file as S.C.No.28/2003 by the Sessions Court, Kozhikode and it was originally made over to the Assistant Sessions Court, Koyilandy for disposal. Thereafter, the case was withdrawn by the Sessions Court and made over to the Additional Sessions Court(Adhoc-II), Koyilandy for disposal. 4. When the accused appeared before the court below, after hearing both sides, charge under section 55(a) of the Abkari Act (ought to be under section 8(1) of the Abkari Act) was framed and the same was read over and explained to him and he pleaded not guilty. In order to prove the case of the prosecution, Pws 1 to 5 were examined and Exts.P1 to P8 and MO1 were marked on their side. After closure of the prosecution evidence, the accused was questioned under section 313 of the Code and he denied all the incriminating circumstances brought against him in the prosecution evidence. He had further stated that no contraband article was seized from his possession. Some contraband articles were seized from the property of one Kunhiraman by the excise officials and they came to the appellant's house and he was taken from Crl.A.No.1726 of 2004 3 there when he did not disclose ownership of the articles seized from Kunhiraman's property and thereafter he was falsely implicated and produced before court. Since evidence in this case did not warrant an acquittal under section 232 of the Code, the accused was called upon to enter on his defence. DW1 was examined and Ext.D1 was marked on his side in defence. After considering the evidence on record, the court below found the appellant guilty under section 55(a) of the Abkari Act, convicted him thereunder and sentenced him to undergo rigorous imprisonment for two years and also to pay a fine of Rs. One lakh, in default to undergo simple imprisonment for six months more. Set off was allowed for the period of detention already undergone. Aggrieved by the same, the present appeal has been preferred by the appellant/accused before the court below. 5. Heard Sri. Sunny Mathew, counsel appearing for the appellant and Sri. Jibu P. Thoams, Public Prosecutor for the State. 6. Counsel for the appellant submitted that though there were independent witnesses available, a person who was residing 50 kms away was shown as witness to the seizure, 4 Crl.A.No.1726 of 2004 which thows suspicion about the genuineness of the prosecution case. Further, PW4, the independent witness, has stated that he was working as the driver of a toddy shop contractor and he signed mahazer from the excise office. Further, the documents produced on the side of the defence and witnesses examined will go to show that local people have protested against the illegal detention of the accused. That shows that investigation was not properly conducted and innocent person has been falsely implicated. He had further stated that there was delay in producing the sample and he has relied on the decision reported in **Ramankuttuy v. Excise Inspector, Chelannur Range** (2013(3) KHC 308) in support of his case. According to him, the evidence will go to show that it is a fabricated case and accused is entitled to get acquittal. 7. On the other hand, Public Prosecutor submitted that the accused has no complaint regarding his arrest when he was produced before court on the date of arrest itself. There was no delay in producing the article and as such, court below was perfectly justified in convicting the appellant for the offence alleged. 8. The case of the prosecution as emerged from the 5 Crl.A.No.1726 of 2004 ## prosecution witnesses was as follows: on 25.7.2000, at about 1.30 p.m, while PW1 the preventive Officer attached to Koyilandy excise range was doing patrol duty along with PW2, an excise guard, and when they reached the place of occurrence, they saw the accused coming with MO1 cannas and on seeing the excise party, he tried to escape from the place, so they stopped him. PW1 examined the contents of MO1 cannas and satisfied that it contained 5 litres of arrack on examination of the contents by smelling and tasting. Thereafter he took sample of 180ml from the liquid and sealed the same and affixed label containing the signature of himself and witnesses and sealed the cannas and labelled the same also in the same fashion and seized the same as per Ext.P2 mahazer in the presence of PW4 and another. He arrested the accused and prepared Ext.P1 arrest memo and gave arrest intimation to his wife. Thereafter, he came to the excise office and produced the accused and the contraband articles seized before PW5, the Excise Inspector, who registered Ext.P4 occurrence report as crime No.17/2000 under sections 8(1) of the Abkari Act and prepared Ext.P6 property list and produced the accused on the same day before the Magistrate as per 6 Crl.A.No.1726 of 2004 Ext.P5 remand report. He produced the articles before court on the same day and sent Ext.P7 forwarding note with a request to send the sample for analysis and accordingly sample bottle was sent from court and Ext.P8 chemical analysis report obtained. He questioned the witnesses and recorded their statements. As per his request, PW3 prepared Ext.P3 sketch plan of the place of occurrence. He collected Ext.P8 chemical analysis report and produced the same before court. He completed the investigation and submitted final report. 9. PW4 is the independent witness to the seizure. He had submitted that he knew the accused and he had also submitted that he signed Ext.P2 mahazer but according to him, he did not see the seizure or arrest of the accused and he was working as the driver of a toddyshop contractor and went to the excise office and at that time he happened to sign Ext.P1 mahazer. A reading of his evidence will go to show that he is now trying to help the accused and that was the reason why he is not supporting the case of the prosecution. 10. Then the evidence available is that of Pws 1 and 2, the detecting officer and the accompanying officer. PW1 had categorically stated that while he was doing patrol duty on that Crl.A.No.1726 of 2004 7 date along with PW2, he had seen the accused coming with MO1 cannas and on seeing the excise party, he tried to go away from the place. So he stopped him and on examination of the cannas, he satisfied that it was arrack. He had also deposed that it was a 10 litre cannas having 5 litres of some liquid, which he satisfied that it was arrack by smelling and tasting the cannas. Thereafter he took sample and sealed the sample bottle and affixed label and sealed and affixed label on the cannas as well and seized the same as per Ext.P1 mahazer. He prepared Ext.P1 arrest memo and gave arrest intimation to his wife. He came to the excise office and produced the accused and the contraband articles before PW5, the Excise Inspector. The evidence of PW1 was corroborated by the evidence of PW2. Though they were cross examined at length, nothing was brought out to discredit their evidence on this aspect. They denied the suggestion that they have seized the cannas containing arrack from the property of one kunhiraman and the accused was taken from his house and a false case has been foisted against him. There is no enmity brought out for Pws 1 and 2 to falsely implicate the accused in a case like this. 11. DW1 was examined and Ext.D1 was marked on the Crl.A.No.1726 of 2004 8 side of the accused to prove false implication. DW1 claimed to be a Congress worker of the locality and leader of some trade unions. According to him, the excise officials came and found some contraband articles namely arrack in some cannas from the property of one Kunhiraman and immediately they went to the house of the accused and there was some dispute arose and thereafter he was taken to the excise office. Later they came to understand that he was falsely implicated in the case and they gave Ext.D1 representation against the same. It may be mentioned here that when the accused was arrested and produced before court, he did not make any complaint of any false implication in the case. Further, evidence of DW1 will go to show that he is known to the accused and except DW1, other signatories in the mass petition was not examined in this case. Further, no attempt was made to pursue the complaint by DW1 and that will go to show that it was filed before the excise official as an after thought so as to create evidence in favour of the accused through political persons having some interest in the accused. So, under the circumstances, the court below was perfectly justified in rejecting the evidence of DW1 and believing the evidence of Pws 1 and 2 and coming to the Crl.A.No.1726 of 2004 9 conclusion that accused was arrested with MO1 cannas by the excise officials, which is said to be containing arrack. 12. It is seen from the evidence of PW5, the Excise Inspector that he registered crime and produced the accused before court on the same day. He had also prepared Ext.P6 property list and produced contraband articles before court along with property list on the next day itself. The arrest report, occurrence report and the mahazer etc reached the court on the date of seizure itself. So, there is no delay in producing the mahazer, documents and report regarding seizure before court without delay. The dictum laid down in **Ramankutty's case** (cited supra) is not applicable to the facts of this case. In that case, the articles were seized on 24.5.1997 and produced before court on 26.5.1997. Further, no arrest memo was produced before court and coupled with that circumstance the court below had found that delay in producing the article also creates doubt regarding arrest as well. But in the decision reported in **Ravi v. State of Kerala & another** (2011 (3) KHC 121), a Division Bench of this Court has held that mere delay in producing the article is not sufficient to doubt the genuineness of the seizure. Further, Crl.A.No.1726 of 2004 10 what is required to be produce forthwith is the report regarding seizure of the articles before court. In this case, occurrence report, seizure mahazer and the accused were produced before court on the same day of seizure. Further, property list was prepared on the same day and it was produced before court on the next day it self. It cannot be said that there was any undue delay in producing the same so as to doubt the genuineness of the articles produced. So the dictum laid down in the above decision is not applicable to the facts of this case. 13. It is seen from Ext.P8 chemical analysis report that date of receipt of the article was shown as 20.7.2000 which could be only a mistake. Considering the crime number mentioned and other descriptions, it could only be on 26.7.2000 and not on 20.7.2000 as mentioned. Further, the forwarding note shows that it contained the specimen seal used for sealing the articles along with the sample seal of the court and the report shows that the sample seal tallied with the specimen seal provided. So under the circumstances, it can be safely concluded that the prosecution has proved beyond reasonable doubt that the article reached before court as well as chemical examination laboratory in a tamper proof condition and the Crl.A.No.1726 of 2004 11 report relates to the sample said to have been taken from the contraband article seized from the possession of the accused. The accused has no case that the article seized was not arrack. Possession of arrack is an offence after the amendment under sections 8(1) and (2) of the Abkari Act. The court below was perfectly justified in convicting the appellant for the offence under section 55(a) of the Abkari Act (which ought to be under sections 8(1) read with 8(2)of the Abkari Act) and the finding does not call for any interference. 14. Counsel for the appellant submitted that sentence imposed is harsh. The court below has sentenced the appellant to undergo rigorous imprisonment for two years and also to pay a fine of Rs. One lakh, in default to undergo simple imprisonment for six months. Set off was allowed for the period of detention already undergone. Persons, who are committing offence under the Abkari Act are committing the offence knowing that it is an offence and ignoring consequences of their act of selling arrack which is being consumed by innocent persons and they are doing the same for their personal gain alone. Showing undue leniency in imposing sentence in such cases only give a wrong signal to the society Crl.A.No.1726 of 2004 12 and it will cause loss of confidence of the public in the criminal justice delivery system. But at the same time, court can take note of antecedents of the accused and criminal background of the accused, possibility of reformation etc while imposing sentence. The prosecution has no case that the accused has got any previous criminal background or he had involved in any other crime of similar nature as well. He was aged 41 years at the time of committing the crime and the prosecution had no case that he had involved in any other crime either before or after this case. So considering the over all circumstances, this Court feels that imposing sentence of 9 months rigorous imprisonment and also default sentence of three moths simple imprisonment will be sufficient and that will meet the ends of justice. So the substantive sentence of rigorous imprisonment for two years and also default sentence of six months simple imprisonment are set aside and the same is modified as follows: The appellant is sentenced to undergo rigorous imprisonment for 9 months and also to pay a fine of Rs. One lakh, in default to undergo simple imprisonment for three months. Set off was allowed for the period of detention 13 Crl.A.No.1726 of 2004 already undergone. In the result, the appeal is partly allowed and the order of conviction passed by the court below under section 55(a) of the Abkari Act (ought to be under sections 8(1) read with section 8(2) of the Abkari Act) and default sentence of fine of Rs. One lakh imposed by the court below are confirmed but substantive sentence of two years rigorous imprisonment and default sentence of six months simple imprisonment are set aside and the same is modified as follows: The appellant is sentenced to undergo rigorous imprisonment for nine months and also to pay a fine of Rs. One lakh, in default to undergo simple imprisonment for three months. Set off is allowed for the period of detention already undergone. Office is directed to communicate a copy of this judgment to the concerned court immediately. ## **Sd/-** ## **K. RAMAKRISHNAN, JUDGE** cl /true copy/ P.S to Judge