Narikodan Kunhan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 17TH DAY OF FEBRUARY 2016/28TH MAGHA, 1937 CRL.A.No. 2060 of 2004 (B)** **--------------------------AGAINST THE JUDGMENT IN SC 63/2002 of ADDITIONAL DISTRICT & SESSIONS JUDGE, FAST TRACK COURT NO.1 (ADHOC), MANJERI DATED 19-11-2004** **APPELLANT(S)/ACCUSED::** **---------------------** **NARIKODAN KUNHAN, S/O. KANNANKUTTY, MORAYOOR, ARIMBRA, MALAPPURAM DISTRICT.** **BY ADVS.SRI.BABU S. NAIR SRI.P.A.RAJESH** **RESPONDENT(S)/STATE::** **--------------------THE STATE OF KERALA, REPRESENTED BY** **THE EXCISE INSPECTOR, MALAPPURAM EXCISE RANGE, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** **BY PUBLIC PROSECUTOR SRI. N. SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.Appeal No.2060 of 2004 ---------------------------------------------Dated this the 17[th] day of February, 2016 ## **JUDGMENT** This appeal is preferred by the accused against the conviction and sentence in S.C.No.63/2002 of Additional Sessions Judge, Fast Track Court No.1 (Adhoc), Manjeri u/s.55(a) of the Abkari Act. The charge against the appellant is that on 23.11.1998 at 5.45 p.m., he was found in possession of 4 litres of illicit arrack at Murayoor, Arimbra desom in Malappuram District by the Preventive Officer, Malappuram. The appellant was arrested and the contraband articles were seized, reaching at the Excise Office, the Preventive Officer registered a crime and after completing investigation, the Excise Inspector, Malappuram laid charge before Judicial First Class Magistrate, Malappuram. Subsequently it was committed to Sessions Court, Malappuram, Crl. Appeal No.2060/2004 2 from there it was made over to Additional Sessions Judge, Manjeri. 2. During trial, prosecution examined 5 witnesses and marked Exts.P1 to P8 as documentary evidence. MO1 was admitted as material object. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. The learned Additional Sessions Judge, Manjeri convicted the accused and sentenced to imprisonment for three years and fine of 1 lakh, in default of payment of fine, simple imprisonment for six months. Being aggrieved by that, he preferred this appeal. 3. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor. 4. The only point argued in this case was whether the seizure of MO1 is believable. The occurrence was deposed by PW1, who was the Preventive Officer, Excise Office, 3 Crl. Appeal No.2060/2004 Malappuram. His evidence shows that on 23.11.1998, while he was conducting patrol duty, the appellant was found proceeding through the pathway near the house of one Cholakulam Moideen carrying MO1 Kannas. On seeing the Excise Party, he became frightened, PW1 intercepted him and inspected MO1, in which he detected 4 litres of arrack. The contraband article was seized, thereafter he took 180ml as sample. The accused was arrested, as per Ext.P3 seizure mahazar. Ext.P1 is the arrest memo. Ext.P2 is the arrest notice. The Excise Officer registered a crime and Ext.P4 is the crime and occurrence report. PW1 categorically stated that he affixed label in the seized article and sealed at the place of occurrence itself. PW2 the Excise Guard who accompanied PW1 supported the evidence. Even though PW1 and PW2 were cross examined by the defence counsel, nothing has been brought out to discredit the oral testimony of PW1 and PW2. Their occular evidence is admissible to prove the possession of Crl. Appeal No.2060/2004 4 MO1. 5. The matter may be further anlaysed on the basis of evidence of the independent witness. PW4 is an independent witness, who did not support the prosecution case, but he admitted his signature in Ext.P3. PW3 Excise Inspector prepared Ext.P5 property list and Ext.P6 is the forwarding note. The seized article was produced before Court as per Ext.P6 forwarding note. The sample taken was examined in the chemical examiner's lab and Ext.P8 is the chemical examination report issued from the laboratory. PW5 completed investigation and laid charge before Court. The probability of the evidence of PW1 to PW3 and PW5, it is found that prosecution proved its case beyond reasonable doubt. The trial Court rightly appreciated the evidence and convicted the accused u/s.55(a) of the Abkari Act. I have also carefully perused the oral and documentary evidence and do not find any ground to interfere with the judgment of the lower court. Crl. Appeal No.2060/2004 5 This Court in **Gopan** v. **State of Kerala** [2007(3) 443] held that mere possession of arrack in any form without any authority would only attract Section 8 of the Abkari Act. The facts and circumstances show that the appellant was in possession of 4 litres of arrack. Therefore, the accused has committed an offence u/s.8(1) and (2) of the Abkari Act. In the result, the conviction and sentence passed by the learned Additional Sessions Judge, Fast Track Court-I (Adhoc), Manjeri u/s.55(a) of the Abkari Act are set aside. The appellant is convicted u/s.8(1) and (2) of the Abkari Act and sentenced to imprisonment for three months and fine of Rs.1 lakh, in default of payment of fine, imprisonment for one month (In this context, relied decision in **Sasikumar** v. **State of** **Kerala** [2012(4) KLT 867(SC)]). The period of detention undergone by the appellant shall be entitled to set off against . the terms of imprisonment The appellant is directed to surrender in the trial Court to undergo the modified sentence, Crl. Appeal No.2060/2004 6 failing which the learned Additional Sessions Judge, Fast Track Court-I (Adhoc), Manjeri shall issue issue non bailable warrant against the appellant forthwith. Crl.Appeal is partly allowed. **P.D. RAJAN, JUDGE.** acd Crl. Appeal No.2060/2004 7