P. A. Muhammed v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN TUESDAY, THE 7TH DAY OF JANUARY 2014/17TH POUSHA, 1935 CRL.A.No. 700 of 2005 --------------------AGAINST THE JUDGMENT IN SC 425/2004 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD DATED 28-02-2005 APPELLANT(S)/ACCUSED: --------------------- P.A.MUHAMMED, AGED 53 YEARS, S/O. ABOOBAACKER, PALLIPUZHA, PALLIKKARA. BY ADV. SRI.C.K.SREEJITH RESPONDENT(S)/COMPLAINANT: -------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.N.SURESH. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **----------------------------------------** ## **CRL.A.No. 700 of 2005** **----------------------------------------** Dated this the 7[th] day of January, 2014 ## **J U D G M E N T** This appeal is directed against the judgment dated 28.2.2005 in S.C.No.425 of 2004 of the court of Additional Sessions Judge (ADHOC-I), Kasaragod by which the learned Sessions Judge convicted the appellant and sentenced him for the offence under Section 55(a) of the Abkari Act. 2. The prosecution allegation is that on 19.10.2002 at about 19.10 hrs., the accused was found in possession of 300 packets, each containing 100 ml. of arrack manufactured in the State of Karnataka, at the road Junction at Pallikkara madom, Pallikkara Village in contravention of the provisions of the Abkari Act and the rules and further, he imported the arrack from the State of Karnataka to the State of Kerala illegally. Thus, according to the prosecution, the accused has committed the offence punishable under Section 55(a) of Crl.A.No. 700 Of 2005 :-2-: the Abkari Act. 3. On the above allegation, Crime No.368 of 2002 was registered in the Bekal Police Station for the said offence and on completing the investigation, a formal report was filed in the Judicial First Class Magistrate Court-II, Hosdurg and the learned Magistrate, by his order dated 8.12.2003 in C.P.No.142 of 2003, committed the case to the Sessions Court wherein S.C.No.425 of 2004 was instituted and subsequently, made over to the present trial court for disposal. Thus, when the accused appeared, after considering the prosecution materials and on hearing the prosecution as well as the defence, a formal charge was framed against him for the offence punishable under Section 55(a) of the Abkari Act, which when read over and explained to the accused, he denied the same and pleaded not guilty. Consequently, the prosecution adduced its evidence by examining PWs.1 to 6 and producing Exts.P1 to P8 documents. Mos.1 and 2 were identified as material objects. Though no separate defence Crl.A.No. 700 Of 2005 :-3-: evidence is adduced, Exts.D1 and D2 contradictory portion of the statements of PWs.1 and 2 under Section 161 of the Cr.P.C. are marked. The trial court, after considering the evidence and materials on record, has found that through the direct evidence of PWs.1 and 2, it is established that the accused was found in possession of arrack and further found that the same was imported from the State of Karnataka to the State of Kerala and thus, the accused is found guilty under Section 55(a) of the Abkari Act and convicted thereunder. On such conviction, the appellant/accused is sentenced to undergo rigorous imprisonment for a period of nine months and to pay fine of Rupees One lakh and in default, he is directed to undergo rigorous imprisonment for further period of three months. It is the above finding, order of conviction and sentence challenged in this appeal. 4. I have heard Sri.C.K.Sreejith, the learned counsel for the appellant and Sri.N.Suresh, the learned Public Prosecutor for the State. Crl.A.No. 700 Of 2005 **==> picture [21 x 9] intentionally omitted <==** 5. To prove the incident as I mentioned earlier, the prosecution has examined PWs.1 to 6 out of which only PWs.1 and 2, the main official witnesses supported the case of the prosecution and the independent witnesses examined as PWs.3 and 4 turned hostile towards the prosecution. When PWs.1 and 2, who are respectively the then S.I. Of Police and the Police Constable attached to the Bekal Police Station, were examined, they have deposed that while they were conducting patrol duty and when reached at about 7.10 p.m on 19.10.2002 at the road junction at Pallikkara madom, the accused was seen coming from their opposite side carrying a bag on his head and on seeing the police jeep, he suddenly turned to the pocket road leading to the ice plant, but he was intercepted and the bag, which was in his possession, was inspected and on inspection, found that the same contained 300 packets, each containing 100 ml. of arrack produced in the State of Karnataka and the packets were identical and contained factory seal and also contained identical printed labels. Crl.A.No. 700 Of 2005 :-5-: According to PWs.1 and 2, out of 300 packets, six packets were opened and the contents therein were equally drawn into two separate bottles, each having the capacity of 375 ml. as samples. According to PWs.1 and 2, the samples were drawn in the presence of independent witnesses viz., PWs.3 and 4. It is also the case of PWs.1 and 2 that the entire proceedings were recorded in a mahazar prepared at the spot itself and the accused was arrested then and there. According to PWs.1 and 2, in the seizure mahazar prepared, the entire proceedings including the arrest of the accused were recorded. According to PWs. 1 and 2, on completing the proceedings, they returned to the Police Station and the case was registered as Crime No.368 of 2002 for the offence under Section 55(a) of the Abkari Act and by preparing the property list, the material objects and the samples were produced before the court. Thus, when PW1 was examined, he had identified and marked through him Ext.P1 seizure mahazar, Ext.P2 F.I.R. and Ext.P3 property list. He had also identified MO1 sack containing 294 Crl.A.No. 700 Of 2005 :-6-: packets of Karnataka made arrack and also identified MO2 empty packets six in numbers. As I indicated earlier, when PWs.3 and 4 were examined, they turned hostile towards the prosecution. However, both PWs.3 and 4 admitted their signatures in Ext.P1 seizure mahazar and they have no dispute that Ext.P1 seizure mahazar was prepared at the spot as claimed by the prosecution. What they have deposed before the court is that at the time of preparing the seizure mahazar, the accused was not present and no contraband article was seen seized. The further investigation was undertaken by PW6, the Additional Sub Inspector of Police, Bekal Police Station and he prepared the scene mahazar to which PW5 was an attestor. Thus, when PW5 was examined, he had deposed that he had witnessed the preparation of Ext.P4 scene mahazar by PW6. The contradictory portion of 161 statements of PWs.3 and 4 respectively were marked as Exts.P5 and P6 through PW6. PW6 has also deposed that he had prepared a forwarding note requesting the court to send the samples Crl.A.No. 700 Of 2005 **==> picture [21 x 9] intentionally omitted <==** for chemical analysis report and Ext.P7 forwarding note and Ext.P8 chemical analysis reports were marked through PW6 during his examination. The defence has also got marked Exts.D1 and D2 contradictory portion of 161 statements of PWs.1 and 2 respectively. These are the evidence and materials on record, referred by the learned Judge in the impugned judgment. 6. The learned counsel for the appellant vehemently submitted that there are two days delay in producing the material objects in the court. It is also the contention of the learned counsel, based upon Exts.D1 and D2 contradictory portion of 161 statements of PWs.1 and 2, that these witnesses cannot be believed. Thus, according to the learned counsel, the trial court is wrong in convicting the appellant. 7. On the other hand, the learned Public Prosecutor submitted that though PWs.3 and 4 are turned hostile, they have admitted their signature in Ext.P1 seizure mahazar and they want to support the defence and for that purpose, they denied their 161 statements as Crl.A.No. 700 Of 2005 :-8-: evidenced by Exts.P5 and P6. According to the learned Public Prosecutor, even though PWs.3 and 4 turned hostile, the evidence of PWs.1 and 2 the official witnesses, who involved in the detection of the crime are intact and nothing elicited from the evidence of PWs.1 and 2 to disbelieve the case of the prosecution. It is also the contention of the learned Public Prosecutor that the evidence of PWs.1 and 2 is further supported and corroborated by the contemporaneous documents like Ext.P1 seizure mahazar, Ext.P2 F.I.R. and Ext.P3 property list. According to the learned counsel, the contraband article was seized at about 7.10 p.m. on 19.10.2002 and the same is produced before the court on 22.10.2002 and as such, there is no substantial delay in producing the material objects and samples. Thus, according to the learned Public Prosecutor, the trial court is fully justified in his finding and convicting the appellant and no interference is warranted. 8. I have carefully considered the contentions advanced by the learned counsel for the appellant as well as the learned Public Crl.A.No. 700 Of 2005 :-9-: Prosecutor and I have perused the evidence and materials on record. 9. In the light of the rival contentions and in view of the evidence and materials on record, the question to be considered is whether the trial court is justified in convicting the appellant for the offence under Section 55(a) of the Abkari Act and whether the delay occurred in the present case is sufficient to disbelieve the prosecution case and whether such delay caused any prejudice to the accused. 10. I have already referred to the evidence on record. The main contention advanced by the counsel for the appellant is about the delay in producing the material objects. In this juncture, it is relevant to refer to the evidence of PW1 about the production of the sample and material objects before the court. During the chief examination itself, PW1 has deposed as follows:- ||“<br>property 20.10.02-ന ക��ടത�കയച�<br>. <br>അത� വര�| |---|---| ||property എര� custody-യ�ല<br>ആയ���ന�.<br> 20-ം( ത)യത�<br>ഞ�യറ�ഴ-യ�(<br>21-ന അട�യന��മ�യ<br>duty| ||ഉണ�യ���നത�ന�ല�( property ക��ടത�കയക�ന| ||വവ��.”<br>(underline supplied)| Crl.A.No. 700 Of 2005 :-10-: From the above version of PW1, it can be seen that the property and the samples were in the safe custody of PW1 till the same is produced before the court. There was no cross examination at this point. During the cross examination, PW1 has further deposed as follows:- |“പ�ക=ന> ��വ�രല|തയ�റ�ക�| |---|---| |അകന@ഷകB�കCD�ഗസരന|<br>property<br>��B�ച�ട�ണ>.| |പപത�രയ ക��ടത�യ�ല<br>|ഹ�ജ��ക�യത<br>20-ം(| |ത)യത�യ�ണ<br>. <br>അന>ഞ�യറ�ഴ-യ�യത�ന�ല|| |property അയച�ല<br>.”|(underline supplied)| From the above evidence of PW1, it is crystal clear that about the delay alleged by the accused and contended by the counsel for the appellant, there is proper and convincing explanation. Nothing elicited from the deposition of PWs.1 and 2 to show that the accused is prejudiced due to the above delay, which is already explained by the prosecution. A Division Bench of this Court in the decision reported in **Ravi** v. **State of Kerala** [2011(3) KLT 353] has held as follows: “............ ........... ................ _There should be explanation for the delay when there is delayed production of the property. ............. ................_ ” Crl.A.No. 700 Of 2005 **==> picture [27 x 9] intentionally omitted <==** In the present case, PW1 has explained the reason for the minor delay in producing the property before the court and he had also deposed that the properties were under his safe custody till the same is produced before the court. So, the above explanation of PW1 can be accepted in view of the decision cited above and accordingly, the contention raised on the basis of the minor delay, is rejected. 11. Another contention of the learned counsel for the appellant is on the basis of Exts.D1 and D2 contradictory statements of PWs.1 and 2. The above contention has already been considered by the trial court in the impugned judgment and according to the learned Judge, as per the contradictions of PWs.3 and 4, the accused was seen coming from the direction of ice plant preferably towards the junction and the witnesses explained it away stating that it was only a mistake of inadvertence and the witnesses had actually told PW6 that the accused was going in the direction of the ice plant. So Exts.D1 and D2 cannot be considered as serious contradictions because the investigating Crl.A.No. 700 Of 2005 **==> picture [27 x 9] intentionally omitted <==** officer admitted that it was the result of his inadvertence. As far as an abkari offence is concerned, the direction of the movement of the accused in all cases is not relevant and probably immaterial also and the available evidence and materials on record positively prove the factum of seizure of Karnataka made arrack from the possession of the accused and therefore, the direction of the movement of the accused at the relevant time is immaterial. Therefore, the above contention of the learned counsel for the appellant fails. 12. In the light of the above discussion and in view of the evidence and materials on record, according to me, the trial court is justified in its finding and convicting the appellant for the offence punishable under Section 55(a) of the Abkari Act. Accordingly, the conviction recorded by the trial court against the appellant for the offence under Section 55(a) of the Abkari Act is confirmed. 13. As this Court has confirmed the conviction of the appellant for the offence under Section 55(a) of the Abkari Act, the learned Crl.A.No. 700 Of 2005 **==> picture [27 x 9] intentionally omitted <==** counsel for the appellant submitted that a lenient view may be taken in the matter of sentence. The above submission cannot be allowed in view of the seriousness of the offence proved against the appellant and it is established that the accused was found transporting 300 packets each having capacity of 100 ml. of Karnataka made arrack in violation of the provisions of the Kerala Abkari Act, purportedly for the sale in the State of Kerala. However, the trial court has imposed only a sentence of nine months rigorous imprisonment, which according to me, is insufficient to meet the ends of justice. However, the State has not filed any appeal challenging the insufficiency of the sentence so awarded. Therefore, the sentence now awarded, according to me, needs no interference. However, the default sentence is fixed as three months, which according to me, is unreasonable and one month rigorous imprisonment will be sufficient to meet the ends of justice and therefore, the default sentence can be reduced to one month rigorous imprisonment. Accordingly, while confirming the substantial Crl.A.No. 700 Of 2005 **==> picture [27 x 9] intentionally omitted <==** sentence of nine months rigorous imprisonment and the fine of Rupees One Lakh, the default sentence is reduced to one month rigorous imprisonment. In the result, this appeal is dismissed confirming the conviction of the appellant for the offence under Section 55(a) of the Abkari Act and while confirming the substantial sentence and the sentence of fine, the default sentence is modified and reduced to one month rigorous imprisonment. The bail bond, if any, executed by the appellant shall stand cancelled and he is directed to appear before the trial court on **7[th] February, 2014** to receive the sentence. If there is any failure on the part of the appellant in appearing before the trial court as directed above, the trial court is free to take coercive steps to secure the presence of the accused and to execute the sentence. This Criminal Appeal is dismissed. **MBS/** **V.K.MOHANAN, Judge** ## Crl.A.No. 700 Of 2005 :-15-: