Praveen v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN WEDNESDAY, THE 27TH DAY OF JUNE 2012/6TH ASHADHA 1934 CRL.A.No. 60 of 2012 (B) -----------------------SC.884/2008 of ADDL. SESSIONS COURT (FAST TRACK COURT NO.II-ADHOC), THRISSUR APPELLANT: ------------ PRAVEEN, C.NO.8224, CENTRAL PRISON, KANNUR. BY ADV. A.ABDUL JALEEL(STATE BRIEF) RESPONDENT: -------------- STATE OF KERALA BY PUBLIC PROSECUTOR SRI P.M. SANEER. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J. ------------------------------Crl.A.No.60 of 2012 ------------------------------Dated this the 27[th] day of June, 2012.** ## **J U D G M E N T** The subject matter of this appeal is the challenge against the conviction and sentence of the appellant vide judgment dated 17.2.2010 in S.C.No.884 of 2008 of the court of the Additional Sessions Judge, Thrissur (Fast Track Court No.II- Adhoc). 2. The case of the prosecution is that, while PWs 2 and 3 were on patrol duty, at about 5.30 p.m on 31.7.2002, the accused came across with a jerry can having a capacity of 5 litres of arrack and accordingly, the same was seized and thereby the accused committed the offence punishable under section 8(1) and (2) and 55(i) of the Abkari Act. Based upon the above allegation, crime No. 31/2002 was registered in the Anthikad Excise Range Office. After investigation, final report was filed and when the accused was produced in the trial court, after hearing the prosecution as well as the defence, a formal charge was framed for the offence punishable under sections 8 (1) and (2) and 55(i) of the Abkari Act and, when the said charge CRL.A.No.60/12 ## **:-2-:** was read over to the accused, he denied the same and pleaded not guilty and consequently, the prosecution produced its evidence by examining PWs 1 to 7 and marked Exts.P1 to P11 and M.Os 1 to 3 were also marked as material objects. Finally the learned Judge of the trial court has found that the prosecution could successfully prove beyond reasonable doubt that the accused is guilty of the offence under section 8(1) and (2) alone of the Abkari Act. Accordingly, while he is convicted for the said offence, he is acquitted for the offence punishable under section 55(i) of the Abkari Act. On such conviction of the accused for the offence punishable under section 8(1) and (2) of the Abkari Act, he is sentenced to undergo simple imprisonment for 4 (four) years and to pay a fine of Rs.1,00,000/-, and in default, he is directed to undergo simple imprisonment for one more year. Set off is allowed under section 428 Cr.P.C. 3. It is the above conviction and sentence challenged by the accused in this appeal which filed from the jail while he is undergoing imprisonment. On receiving the jail appeal, as directed by this Court, the registry has appointed Advocate Sri CRL.A.No.60/12 ## **:-3-:** A.Abdul Jaleel, from the panel of State Brief to prosecute the appeal. Thus I have heard Sri A.Abdul Jaleel, the counsel appearing for the appellant and the Public Prosecutor Sri P.M.Saneer. 4. The learned Counsel for the appellant vehemently submitted that the case of the prosecution that the accused was in possession of the contraband article and seized from his possession cannot be believed since no independent witness has supported the case of the prosecution. According to the learned Counsel, PWs 4 and 7, the independent witnesses cited and examined by the prosecution are hailing from 10 kilo metres away from the place of occurrence and though they denied the fact that they witnessed the seizure, the learned Judge of the trial court simply accepted the prosecution case. According to the learned counsel, the alleged place of occurrence and seizure is not an isolated place and several persons are residing in and around the place of occurrence and there are several shops adjacent to the place of occurrence but none of the persons from the locality is cited and examined by the prosecution and therefore to prove the arrest and seizure, CRL.A.No.60/12 ## **:-4-:** there is no independent evidence other than the interested version of the prosecution witnesses. It is also the submission of the learned counsel for the appellant that though the accused is produced in the court there is serious laches on the part of the prosecution in producing the contraband article in time in the court. It is also argued by the learned counsel that, the claim of the prosecution that PWs 2 and 3 arrested the accused when the accused came across with a jerry can. According to the counsel, it is brought on record that the accused can see the raiding parties within 240 metres away from the place of occurrence and therefore, the accused could have run away from the spot and therefore it is impossible to believe the prosecution allegation. 5. On the other hand, the learned Public Prosecutor submitted that there is no delay in producing the properties in the court below since Ext.P2 property list and the endorsement contained therein would show that the property was received in the office of the court on 2.8.2002 itself and the date of occurrence is dated 31.7.2002. It is also pointed out that the court seal contained the date 1.8.2002, i.e., on the next day of CRL.A.No.60/12 ## **:-5-:** the seizure. Thus, the learned Public Prosecutor submitted that there is no delay in producing the property. It is also the submission of the learned Public Prosecutor that it is a case where the prosecution has cited and examined PWs 4 and 7, the independent witness, to prove the seizure and arrest of the accused, but they turned hostile. But they have admitted their signatures in Ext.P4 arrest notice as well as Ext.P6 mahazar. Even though the independent witnesses turned hostile, according the learned Public Prosecutor, there is no legality in acting upon the evidence of PWs 2 and 3, the official witnesses who detected the crime. Therefore, the learned Public Prosecutor submits that there is no scope for any interference with the findings of the court below and the conviction and sentence imposed on the appellant. 6. I have carefully considered the arguments advanced by the learned counsel for the appellants as well as the learned Public Prosecutor and I have perused the judgment of the trial court as well as the evidence and materials on record. 7. In the light of the rival arguments advanced by the counsel for the appellant and the learned Public Prosecutor CRL.A.No.60/12 ## **:-6-:** and the evidence and materials on record, the question to be considered is whether the trial court is justified in its finding and convicting the appellant for the offence punishable under section 8(1) and (2) of the Abkari Act. The crux of the prosecution allegation is that, at about 5.30 p.m. on 31.7.2002, the accused was found in possession of 5 litres of arrack in a jerry can having capacity of 5 litres and thereby committed the offence punishable under sections 8(1) and (2) and 55(i) of the Abkari Act. To substantiate the above allegation, the prosecution depends upon the evidence of PWs 1 to 7 and documents Exts.P1 to P11. The prosecution has also produced MOs 1 to 3, material objects. Among the prosecution witnesses, PW1 is the then Excise Inspector and when he was examined, he had stated that he had received Ext.P7 occurrence report, the accused as well as the contraband article and other documents including arrest memo and arrest notice and Ext.P6 mahazar. and accordingly, he registered Ext.P1 crime and occurrence report. It was PW1 who produced the property before the court after preparing Ext.P2 property list. PW1 has also stated that he had produced the accused before the court along with CRL.A.No.60/12 ## **:-7-:** Ext.P3 remand report. During his examination he has also identified MO1 Jerry Can, MO2 Glass and MO3 mobile phone. 8. PWs 2 and 3 are the officials who detected the crime. When they were examined, they deposed more or less in the same way. According to them, on 31.7.2002, at about 5.30 p.m., when they reached near the New Prince Bakery and from distance of 15 yards, they could see the accused coming from east and when he reached the electric post bearing No.MVA 3914, he saw the detecting party and got perplexed. According to the prosecution witness, the above conduct of the accused created suspicion among the excise officials and thus they intercepted the accused in the presence of PW4 and PW7. According to these witnesses, on inspection of the jerry can which was in the possession of the accused, they realised that the same contained some liquid which on tasting and smelling realised as arrack. According to PWs 3 and 4, the accused was arrested as per arrest memo and the arrest was notified through Ext.P5. According to them, during the search of the person of the accused, MO3 phone was obtained from shirt pocket of the accused and MO2 glass from the second fold of CRL.A.No.60/12 ## **:-8-:** his dothi. PWs 2 and 3 identified MO3 as well as the MO2. The evidence of PWs 2 and 3 further shows the steps taken by them towards the seizure of the contraband article as well as drawing of samples. The entire procedure adopted by PW2 in the seizure and arrest of the accused has been recorded in Ext.P6 wherein PWs 2 and 3 and PWs 4 and 7 put their signature. PW2 has also stated that, after the seizure and arrest of the accused, he reached in the Excise Special Squad Office and he prepared Ext.P7 occurrence report and thereafter, the accused, the material objects as well as documents including Ext.P7 were transmitted to PW1 who was in charge of Anthikkad Range Office. 9. PWs 4 and 7 are the independent witnesses cited by the prosecution and examined to prove Ext.P4 arrest notice and Ext.P6 mahazar but they turned hostile though they signed in these documents. PW5 Village officer proved Ext.P9 location sketch. The further investigation was undertaken by PW6 who prepared Ext.P10 scene mahazar. Ext.P11 chemical analysis report was also marked through PW6. Ext.P8 is the portion of statement of PW4. These are the evidence on record. As I CRL.A.No.60/12 ## **:-9-:** indicated earlier, the main challenge is with respect to the seizure of the contraband article and, to substantiate the challenge, it is argued that the property reached in the court belatedly but as rightly pointed out by the Public Prosecutor, though the contraband article reached in the office of the court only on 2.8.2002, the court seal shows that it reached in the court on 1.8.2002 and there is an endorsement to that effect on the reverse side of Ext.P2 property list. So the above contention of the defence will not survive. Another contention advanced is that there is no independent evidence to support the prosecution case. The above contention is not sustainable. This is not a case where no independent witness is cited and examined by the prosecution. But the record shows that PWs 4 and 7, who are independent witnesses are cited and examined, but they turned hostile. Though PW4 and PW7 admitted their signature in Ext.P4 arrest memo and Ext.P6 seizure, they still turned hostile so as to help the accused. This court in the decision in **Vikraman v. State of Kerala** (2007(1) KLT 1010) held that, if the evidence of the detecting officer is credible and believable, the hostility shown by an independent mahazar CRL.A.No.60/12 ## **:-10-:** witness need not deter the court from considering the testimony of the detecting officer and proceedings accordingly. In the present case also though PWs 2 and 3 were subjected to lengthy cross examination, nothing is brought on record to disbelieve their evidence. Therefore, even though PWs 4 and 7 turned hostile, the evidence of PWs 2 and 3 are sufficient to prove the allegation. The decision in **Abdul Rasheed v. State of Kerala** (2008 (3)KLT 150) is also available in favour of the prosecution on the above point. In the light of the above discussion and the evidence and materials on record, I am of the view that the trial court is fully justified in its finding and convicting the appellant for the offence punishable under section 8 (1) and (2) of the Abkari Act. 10. Regarding the sentence, the counsel submits that a lenient view may be taken. According to me, the said submission requires serious consideration. On the date of the incident, the accused was at about 26 years and the prosecution has no case that he had involved in any other similar offence. Considering the above mitigating circumstances, according to me, the sentence imposed against the appellant requires CRL.A.No.60/12 ## **:-11-:** modification. While confirming the sentence of fine of Rs.one lakh, the substantial sentence can be reduced and fixed as 30 months (Thirty months) imprisonment and the default sentence can be reduced to 3 months (three months). Accordingly , the appellant is sentenced to undergo simple imprisonment for 30 months and to pay fine of Rs.1,00,000/- (Rs.one lakh) for the offence punishable under section 8(1) and (2) of the Abkari Act, and in default of payment of fine, he is directed to undergo simple imprisonment for a period of 3 months. Set off is allowed under section 428 Cr.P.C. In the result, this appeal is dismissed confirming the conviction of the appellant for the offence under section 8 (1) and (2) of the Abkari Act as recorded as per judgment dated 17.2.2010 in S.C.No.884/2008 of the court of the Additional Sessions Judge, Thrissur, (Fast Track Court No.II- Adhoc), but subject to modification with respect to the sentence to the extent indicated above. In the light of the above modification with respect to the sentence, the appellant/accused is entitled to get released from the jail forthwith, if he is not required in any other case. The CRL.A.No.60/12 **:-12-:** Registry is directed to forward the gist of this judgment to the Superintendent, Central Prison, Kannur, forthwith, for appropriate action. **V.K.MOHANAN, Judge** kvm/- CRL.A.No.60/12 **:-13-:**