Paramu v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN MONDAY, THE 28TH DAY OF MAY 2012/7TH JYAISHTA 1934 CRL.A.No. 2542 of 2010 ---------------------[AGAINST THE ORDER IN SC.486/2008 of ADDL. SESSIONS JUDGE, THRISSUR (FAST TRACK COURT NO.II- ADHOC) ] APPELLANT(S): ------------ PARAMU, AGED 49 YEARS, S/O.SUBRAN, THEKKUMTHALA HOUSE,MELOOR VILLAGE, KUNNAPPILLY THRISSUR DISTRICT. BY ADVS.SRI.NAGARAJ NARAYANAN SRI.RAJAN VELLOTH SRI.SAIJO HASSAN SRI.BENOJ C AUGUSTIN SRI.PRATHAP PILLAI RESPONDENT(S): -------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.M.SANEER. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28-05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** **---------------------------------------Crl.A.No. 2542 of 2010 ----------------------------------------** Dated this the 28[th] day of May, 2012 ## **J U D G M E N T** Challenging the judgment dated 9.3.2010 in S.C.No.486/2008 of the court of Additional Sessions Judge, Thrissur (Fast Track Court No.II, Adhoc), the accused herein preferred this appeal. 2. The case of the prosecution is that at about 5.15 p.m. on 14.2.2007, when Pws.1 and 2 were on patrol duty along the Kunnappilly-Adichili road lying in east-west direction and while proceeding from west to east, in front of the house of one Vattassery Vijayan at a distance of 20 mts., they have seen the accused coming across them and the accused was found in possession of one jerry can and on examination of the same, it was realised that the liquid contained therein is arrack and thus, according to the prosecution, the accused has committed the offences punishable under Section 8(1) and (2) of the Abkari Act (for short 'the Act'). On the basis of the ## **Crl.A.No.2542 of 2010** ## **:-2-:** above allegation, crime No.6 of 2007 was registered in the Excise Range, Chalakkudi for the said offence and on completing the investigation, a report was filed before the Judicial First Class Magistrate Court, Chalakudi and on committal and based upon which Sessions Case No.486 of 2008 was instituted in the Sessions Court and when the accused appeared, after hearing the prosecution as well as the defence, a formal charge was framed against the accused under Sections 8(1) and (2) of the Act for which he pleaded not guilty and denied the charge and consequently, the prosecution adduced its evidence consisting of Pws.1 to 4 and Exts.P1 to P13. The jerry can produced is identified and marked as MO1. No evidence is adduced from the side of the defence. The trial court finally found that the prosecution allegation is true and the prosecution could succeed in proving the guilty of the accused, beyond reasonable doubt and thus, convicted him for the offences under Sections 8(1) and (2) of the Act. On such conviction, the appellant is sentenced to undergo simple ## **Crl.A.No.2542 of 2010** ## **:-3-:** imprisonment for three years and to pay a fine of `1 lakh and in default, he is directed to undergo simple imprisonment for one more year. Set off is allowed. It is the above conviction and sentence challenged in this appeal. 3. I have heard Sri.Nagaraj Narayanan, learned counsel for the appellant and Sri.Saneer, learned Public Prosecutor. 4. The crux of the prosecution allegation is that the appellant was found in possession of four litres of illicit arrack on 14.2.2007 at about 5.50 p.m. near the house of one Vattassery Vijayan, S/o.Kuttan, in Kunnappilly-Adichili Road. In order to prove the above allegation, the prosecution mainly depends upon the evidence of Pws.1 and 2, who are the then Excise Inspectors attached to the Excise Range, Chalakudy. When Pws.1 and 2 were examined, they have deposed fully in terms of the prosecution allegation. According to them, when they were on patrol duty on 14.2.2007 and while they were travelling along Kunnappilly-Adichili road from west to east at a distance of 20 mts., they saw the accused crossing the road from east to west ## **Crl.A.No.2542 of 2010** ## **:-4-:** carrying MO1 jerry can. According to Pws.1 and 2, on seeing Pws.1 and 2, the accused got perplexed and attempted to turn round and run away. But they intercepted and they examined the accused in the presence of Pws.3 and 4 independent witnesses. PW1 says that the jerry can which was in his possession was seized and on inspection, he found that the same contained 4 litres of liquid and the said liquid on taste and smell, identified as arrack and the same is convinced by the independent witnesses also. Thus, according to Pws.1 and 2, the accused was arrested by PW1 from the spot after preparing Ext.P1 arrest memo and the arrest notice was served on the wife of the accused and the said arrest notice is marked as Ext.P2. According to the witnesses, the samples were drawn from the contraband article seized from the physical possession of the accused and the entire proceedings adopted by PW1 are noted in Ext.P3 mahazar. When PW1 was examined, the prosecution has got marked Ext.P1 arrest memo, Ext.P2 arrest notice, Ext.P3 seizure mahazar etc. As per the evidence of Pws.1 and 2, after the seizure of the contraband article ## **Crl.A.No.2542 of 2010** ## **:-5-:** and the arrest of the accused, Ext.P4 crime and occurrence report was registered by PW1. PW1 has further stated that he had prepared Ext.P5 forwarding note, Ext.P6 covering letter, Ext.P7 property list and Ext.P8 remand report. Ext.P9 scene mahazar and Ext.P10 sketch already prepared by PW1 are also got marked. Ext.P11 is the chemical analysis report by which it is certified that the sample contains 38.63% of ethyl alcohol. The contradiction that contained in 161 statement of Pws.3 and 4 is respectively marked as Exts.P12 and P13. When the evidence of Pws.1 and 2, official witnesses supported the prosecution case, Pws.3 and 4 the independent witnesses, who were examined to prove the seizure of the contraband article and arrest of the accused and the incident, turned hostile. But, it is relevant to note that they have admitted their signature which contained in Ext.P1 arrest memo, Ext.P3 seizure mahazar and label in MO1 can. These are the evidence and materials relied on by the learned Judge of the trial court in support of his finding and for convicting the appellant. ## **Crl.A.No.2542 of 2010** **:-6-:** 5. The learned counsel for the appellant vehemently submitted that the entire prosecution case is liable to be rejected due to the illegal investigation undertaken by the prosecution in this case. It is also the submission of the learned counsel that to prove the incident, absolutely there is no independent evidence and the evidence of Pws.1 and 2, the official witnesses are not corroborated by any independent evidence. The learned counsel submitted that the trial court has miserably failed to consider the above aspect and simply believing upon the prosecution evidence, convicted the appellant for the offences under Sections 8(1) and (2) of the Abkari Act. Learned counsel has also strenuously submitted that in the light of the decision of the Honourable Apex Court, in **Megha Singh** v. **State of Haryana** [AIR 1995 SC 2339], the investigation is vitiated since the same official viz., PW1, who allegedly detected the crime, had undertaken the investigation and therefore, in the light of the above decision of the Supreme Court, the investigation is rendered as illegal and ## **Crl.A.No.2542 of 2010** ## **:-7-:** improper. 6. On the other hand, the learned Public Prosecutor submitted that the evidence on record are sufficient to prove the allegation raised by the prosecution against the appellant/accused. According to the learned Public Prosecutor, in the evidence of Pws.1 and 2, the officers of the Excise Department, who detected the crime, there are no infirmities or contradiction so as to doubt the veracity of the evidence of the prosecution witnesses. It is the further submission of the learned Public Prosecutor that the oral evidence of Pws.1 and 2 are corroborated by the documentary evidence. Thus, according to the learned Public Prosecutor, the trial court is fully correct in convicting the appellant/accused and no interference is warranted. 7. I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor. I have perused the judgment of the trial court and gone through the evidence and materials on record. 8. In the light of the rival contentions advanced by the ## **Crl.A.No.2542 of 2010** ## **:-8-:** learned counsel for the appellant and the learned Public Prosecutor and especially in the light of the evidence and materials involved in the case, the question to be considered is whether the trial court is justified in its finding and convicting the appellant for the offences punishable under Sections 8(1) and (2) of the Abkari Act. 9. The crux of the prosecution allegation is that the appellant was found in possession of illicit arrack. In order to prove the above allegation, the prosecution mainly depends upon the evidence of Pws.1 and 2, the officers those who detected the crime. When Pws.1 and 2 were examined, they have deposed strictly in accordance with the case of the prosecution. Though Pws.1 and 2 were subjected to lengthy cross-examination, nothing brought on record to disbelieve or reject their evidence. It is also relevant to note that the contemporaneous documents like Ext.P1 arrest memo, Ext.P2 arrest notice, Ext.P3 seizure mahazar, ensured the correctness of the depositions of Pws.1 and 2. Besides the above, the prosecution has also cited and examined Pws.3 and 4 independent witnesses to prove ## **Crl.A.No.2542 of 2010** ## **:-9-:** the seizure and arrest of the accused etc. But, Pws.3 and 4 turned hostile. As correctly pointed out by the learned Public Prosecutor, though independent witnesses denied to have witnessed the incident, they have admitted their signature contained in the vital documents relied upon by the prosecution viz., Ext.P1 arrest memo, Ext.P2 arrest notice and Ext.P3 seizure mahazar. From the above facts, it is crystal clear that Pws.3 and 4 turned hostile to save the accused. Therefore, from the evidence on record produced by the prosecution and also from the materials made available, according to me, in the absence of any infirmities or contradictions in the evidence of Pws.1 and 2, the official witnesses, their evidence need not be discarded or rejected. Therefore, according to me, the finding of the court below that there are sufficient evidence to prove the prosecution allegation that the accused was found in possession of contraband article is correct and legal. 10. The learned counsel on the strength of the decision ' s case reported in Megha Singh [cited supra] submitted that the ## **Crl.A.No.2542 of 2010** ## **:-10-:** investigation in this case is vitiated since the crime was detected by PW1 and the investigation was undertaken by the said witness viz., PW1, which according to the learned counsel is illegal and impermissible in law. I have gone through the judgment cited by the learned counsel for the appellant. In paragraph 4 of the judgment, the Honourable Apex Court has not held that the investigation conducted therein is illegal or improper. The Division Bench of this Court in the decision in **Kader** v. **State of Kerala** [2001(2) KLT 407] in an identical case has held particularly after having considered the provisions of the NDPS Act, which are identical to the provisions of the Kerala Abkari Act, that by the time of arrest, the main part of the investigation will be completed and duty of the investigating officer is mainly in sending samples for chemical analysis and other routine work and there is no likelihood of any prejudice in usual circumstances. As far as abkari offences are concerned, by the seizure of the contraband article and arrest of the accused from the spot, the ## **Crl.A.No.2542 of 2010** ## **:-11-:** main part of the investigation is over and in the present case, the said part of the investigation is conducted by PW1. Therefore, in the light of the Division Bench decision of this Court which I cited supra, especially when the appellant has miserably failed to show that he was prejudiced due to the investigation conducted by PW1 who detected the crime, the contention of the learned counsel is liable to be rejected and I do so. No other points are raised in support of the challenge of the findings and conviction recorded by the learned Judge of the trial court. Therefore, the conviction recorded by the trial court against the appellant is confirmed. 11. Regarding the sentence, the learned counsel submitted that the same is exorbitant and disproportionate to the allegation against the appellant. It is the further submission of the learned counsel that at the time of the alleged incident, the accused was at the age of 49 and he is a coolie by profession and therefore, a lenient view may be taken, especially when the prosecution has no allegation that he is a habitual offender. According to me, the above submission ## **Crl.A.No.2542 of 2010** ## **:-12-:** requires positive consideration. As per the allegation of the prosecution, the accused was found 4 litres of illicit arrack and the prosecution has no case that the appellant is a habitual offender or involved in similar offences. At the time of the alleged incident, the appellant was at the age of 49 and now he had already undergone two years of simple imprisonment. Under the above mitigating circumstances, according to me, the sentence requires modification. Accordingly, in modification of the sentence imposed against the appellant by the trial court, the appellant is sentenced to undergo simple imprisonment for a total period of 18 months and he is also sentenced to pay fine of `1 lakh and in default, he is directed to undergo simple imprisonment for a period of six months. Set off is allowed under Section 428 of the Cr.P.C. In the result, this appeal is dismissed confirming the conviction of the appellant for the offence punishable under Sections 8(1) and (2) of the Abkari Act as imposed by the trial court by its ## **Crl.A.No.2542 of 2010** ## **:-13-:** judgment dated 9.3.2010 in S.C.No.486 of 2008, but subject to the modification with respect to the sentence to the extent indicated above. In the light of the modification of sentence, according to me, the appellant is entitled to get released from the jail forthwith since he is undergoing imprisonment from the date of the judgment i.e., on 9.3.2010, if he is not required in any other case. Therefore, the Registry is directed to forward a gist of this judgment to the Superintendent of Central Prison, Kannur. **V.K.MOHANAN, Judge** MBS/ ## **Crl.A.No.2542 of 2010** **:-14-:** **V.K.MOHANAN, J** . CRL.A.No. OF 2003 **JUDGMENT** Dated:.2012 **Crl.A.No.2542 of 2010** **:-15-:** **V.K.MOHANAN, J. ---------------------------------------Crl.A.No. 2542 of 2010 ----------------------------------------** Dated this the 28[th] day of May, 2012 ## **JUDGMENT** Regarding the sentence, the learned counsel submitted that the same is exorbitant and disproportionate to the allegation against the appellant. It is the further submission of the learned counsel that at the time of the alleged incident, the accused was at the age of 49 and he is a coolie by profession and therefore, a lenient view may be taken, especially when the prosecution has no allegation that he is a habitual offender. According to me, the above submission requires ## **Crl.A.No.2542 of 2010** ## **:-16-:** positive consideration. As per the allegation of the prosecution, the accused was found 4 litres of illicit arrack and the prosecution has no case that the appellant is a habitual offender or involved in similar offences. At the time of the alleged incident, the appellant was at the age of 49 and now he had already undergone two years of simple imprisonment. Under the above mitigating circumstances, according to me, the sentence requires modification. Accordingly, in modification of the sentence imposed against the appellant by the trial court, the appellant is sentenced to undergo simple imprisonment for a total period of 18 months and he is also sentenced to pay fine of `1 lakh and in default, he is directed to undergo simple imprisonment for a period of six months. Set off is allowed under Section 428 of the Cr.P.C. In the result, this appeal is dismissed confirming the conviction of the appellant for the offence punishable under Sections 8(1) and (2) of the Abkari Act as imposed by the trial court by its ## **Crl.A.No.2542 of 2010** ## **:-17-:** judgment dated 9.3.2010 in S.C.No.486 of 2008, but subject to the modification with respect to the sentence to the extent indicated above. In the light of the modification of sentence, according to me, the appellant is entitled to get released from the jail forthwith since he is undergoing imprisonment from the date of the judgment i.e., on 9.3.2010, if he is not required in any other case. Therefore, the Registry is directed to forward a gist of this judgment to the Superintendent of Central Prison, Kannur forthwith. **V.K.MOHANAN, Judge** MBS/ ## **Crl.A.No.2542 of 2010** **:-18-:** **V.K.MOHANAN, J** . CRL.A.No. 434 OF 2003 ## **Crl.A.No.2542 of 2010** ## **:-19-:** ## **JUDGMENT** Dated:11.11.2011