PODIYAN v. STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 18[TH] DAY OF NOVEMBER 2022 / 27TH KARTHIKA, 1944** **CRL.A NO. 981 OF 2014** **AGAINST THE JUDGMENT DATED 16.09.2014 IN S.C.NO.498 OF 2002 OF THE ADDITIONAL DISTRICT COURT & SESSIONS COURT-II, ALAPPUZHA** ## **APPELLANT/ACCUSED:** **PODIYAN AGED 62 YEARS, S/O.KOCHUKUNJU, REMAY BAHVANAM, KANNANAMKKUZHI MURI, THAMARAKULAM, MAVELIKKARA.** **BY ADVS. SRI.R.SUNIL KUMAR SMT.A.SALINI LAL** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REP.BY THE SUB INSPETOR, NOORANADU, THROUGH THE PUBLIC PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERANKULAM.** **ADV SANAL P RAJ, PP** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 14.11.2022, THE COURT ON 18.11.2022 DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.981 of 2014 ## **JUDGMENT** The appellant stands convicted for an offence punishable under Section 8(2) of the Abkari Act, 1077. He is sentenced to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.one lakh, with a default sentence of simple imprisonment for a period of one month. 2. The judgment of conviction and order of sentence of the Additional Sessions Judge-II, Alappuzha, in S.C.No.498 of 2022 are under challenge in this appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973. This appeal was admitted on 29.09.2014. Sentence imposed on the appellant was suspended and he was released on bail on executing a bond. 3. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor. 4. The allegations based on which the prosecution was initiated is that at about 12.40 p.m. on 18.10.2000 the appellant was found carrying a bottle containing 550 ml. of arrack near Puthenchira Bridge in Kannanakuzhy Muri in Thamarakulam Village. 3 Crl.Appeal No.981 of 2014 5. While PW1 along with PW2 and others was on patrol duty happened to intercept the appellant on seeing him walking possessed with a bottle and got perplexed on seeing the Excise officials. On realising that the bottle contained arrack, the appellant was arrested and the contraband seized. A sample was drawn from the contents of the bottle. Seizure was effected and the appellant was arrested in the presence of two witnesses, who were examined as PWs.4 and 5. After necessary investigation a final report was filed, based on which the prosecution was initiated. 6. The appellant was initially tried before the Additional Sessions Judge, Fast Track Court (Adhoc-I), Alappuzha, which resulted in his conviction and sentencing as per the judgment dated 20.02.2004. The appellant assailed that judgment by filing Crl.Appeal No.475 of 2004 before this Court. That appeal was allowed and the matter was remitted for fresh trial. Thereafter, the II Additional Sessions Judge, Alappuzha held trial afresh. PW1 to 4 were recalled for further examination. PW5 had expired by that time. Exts.P4 to P8 4 Crl.Appeal No.981 of 2014 were additionally marked. The appellant was again convicted by the learned Additional Sessions Judge. 7. The learned counsel appearing for the appellant would submit that there is total lack of evidence to find the appellant guilty. When PWs.4 and 5 failed to support the prosecution, the evidence of PWs.1 and 2, who are official witnesses, alone is available regarding the alleged arrest and seizure. Their evidence is contradictory to each other, and therefore is insufficient to prove the charge levelled against the appellant. It is contended that no sample seal was affixed in Ext.P1 mahazar, and therefore the possibility for tampering with the contraband and the sample produced before the court cannot be ruled out. Further, it is contended that the Property Clerk in the Court of the Judicial Magistrate of the First Class, Mavelikkara, where the contraband and the sample were received, was not examined, and therefore evidence to prove that the articles, including sample, were kept in proper custody all throughout is lacking. On such grounds, the appellant assails the impugned judgment. 5 Crl.Appeal No.981 of 2014 8. The incident was on 18.10.2000. PW1 along with PW2 and others was on patrol duty. They found the appellant walking along the road carrying a bottle. The appellant came in the opposite direction. Since he tried to escape on seeing the Excise party, he was stopped and the bottle with him was examined. That resulted in his arrest and seizure of the contraband on their finding that the liquid contained in the bottle was arrack. Both PWs.1 and 2 deposed in court the whole incident of arrest and seizure. Their version regarding the seizure and the arrest are tallied with each other. There cannot find any inconsistency in their evidence. 9. PWs.4 and 5, who were cited and examined to prove the arrest and seizure, did not support the prosecution. They denied having seen the seizure of the contraband from the possession of the appellant or his arrest. However, both of them admitted having signed Ext.P1 mahazar and Ext.P5 arrest memo and Ext.P6 arrest notice. They further admitted their signatures found on the contraband. Therefore, their evidence renders help to the prosecution on material aspects 6 Crl.Appeal No.981 of 2014 that PWs.1 and 2 reached the place of occurrence and effected seizure of the contraband on executing Ext.P1 mahazar. ## 10. The Apex Court in **Aher Raja Khima v. State of Saurashtra [AIR 1956 SC 217]** held: "The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration". ## 11. In **Tahir v. State (Delhi) [(1996) 3 SCC 338]** , dealing with a similar question, the Apex Court stated: "Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case.” 12. In **Karamjit Singh v. State (Delhi Administration) [AIR 2003 SC 1311]** the Apex Court again 7 Crl.Appeal No.981 of 2014 ## held,- “The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down.” ## 13. In **Baldev Singh v. State of Haryana [(2015)** **17 SCC 554],** the Apex Court reiterated that view. In the light of the law laid down by the Apex Court as above, evidence of excise officials, if trustworthy, can be the basis for conviction, even in the absence of any independent evidence. 14. On a detailed consideration and appreciation of oral testimonies of PWs.1 and 2, who are the Excise Inspector and Preventive Officer, it is seen that there exists no material inconsistency or contradiction in their evidence. Therefore, I am of the view that their evidence can be acted upon. 8 Crl.Appeal No.981 of 2014 15. Coming back to the Excise Office, PW1 registered a crime regarding the incident as per Ext.P2 crime and occurrence report. On the same day, PW1 forwarded the appellant, the documents and also the contraband to the court. On the same day itself, the contraband and the sample were received in court. The investigation was taken over by PW3, the Excise Inspector in Mavelikkara Excise Range. He has submitted Ext.P8 forwarding note before the court for sending the samples prepared by PW1 for chemical examination. Ext.P3 is the report of the Assistant Chemical Examiner, Government of Kerala. The report is to the effect that the sample contained 29% Ethyl Alcohol. That report proved that the sample prepared from the liquid contained in the bottle possessed by the appellant was ethyl alcohol. MO1 is the bottle seized from the possession of the appellant. From the evidence of PWs.1, 2, 4 and 5 coupled with Ext.P1, it has been proved that the appellant possessed MO1 bottle, which contained 550 ml. of liquid which was proved to be Ethyl Alcohol. 9 Crl.Appeal No.981 of 2014 16. The forwarding note was submitted before the court on the same day and the sample was forwarded to the Chemical Examiners' Laboratory on the very next day. There occurred no delay in any of such processes. It may be noted that besides PW1, PW4 and PW5 deposed before the court that their signatures were there in the wrapper on MO1 bottle and the sample. It is true that in Ext.P1 specimen of the seal, which affixed on the contraband and the sample was not affixed. Here, from the fact that the contraband and the sample bore the signatures of not only PW1, but also PWs.4 and 5. It would establish that those articles reached the court intact. Ext.P3 report contained the certification that the seals on the sample was intact and tallied with the specimen seal provided in the forwarding note. In the light of the said evidence, it can well be found that the sample prepared by PW1 at the place of occurrence was examined in the chemical examiner's laboratory without there having any interpolations. 17. What emerges from the aforesaid discussion is that the prosecution has succeeded in proving beyond doubt that 10 Crl.Appeal No.981 of 2014 the appellant possessed 550 ml. of arrack contained in MO1 bottle. The said act amounted to violation of Section 8(1) of the Abkari Act punishable under Section 8(2). The learned Additional Sessions Judge found the appellant guilty, on the basis of sufficient evidence and on sound reasoning. I find no reason to interfere with the said finding. The challenge to the impugned judgment is bound to fail. The learned Sessions Judge imposed only a minimum sentence and I find no reason to interfere with the same. The appeal is therefore dismissed. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr