Rajesh T. S/o Raman Kutty v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE SUNIL THOMAS FRIDAY, THE 29TH DAY OF JANUARY 2016/9TH MAGHA, 1937 CRL.A.No. 1479 of 2011 ( ) --------------------------- AGAINST THE ORDER/JUDGMENT IN SC 123/2010 of ADDITIONAL SESSIONS JUDGE/SPL. COURT (NDPS ACT CASES), THODUPUZHA DATED 16-08-2011 APPELLANT(S)/ACCUSED NO.1: ------------------------- RAJESH T. S/O.RAMAN KUTTY, THELOOR VEEDU, KADALASSERY KARA, VALLICHIRA VILLAGE, THRISSUR TALUK. BY ADVS.SRI.C.A.CHACKO SMT.C.M.CHARISMA RESPONDENT(S)/COMPLAINANT & STATE: -------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.(CR.NO.10/2009 OF EXCISE RANGE OFFICE, VANDIPERIYAR, IDUKKI DISTRICT) R BY PUBLIC PROSECUTOR SRI.ABJITH LESLIE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/11/2015 THE COURT ON 29/1/2016 DELIVERED THE FOLLOWING: ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **Crl.A. No.1479 of 2011** - - - - - - - - - - - - - - - - - - Dated this the 29[th] day of January, 2016 ## **JUDGMENT** The first accused, who stands convicted by the judgment in SC No.123/2010 of the Second Additional Sessions Judge/Special Judge for NDPS Act, Thodupuzha for offences punishable under Sections 8(1)&(2) and 55(a) of the Kerala Abkari Act, is the appellant herein. 2. The case of the prosecution was that on 1-4-2009 at about 9.30. p.m. while the Circle Inspector of the Special Squad was on a regular patrol duty, intercepted a lorry bearing No.KL-13 S 6810 proceeding along Kumali - Kottayam main road. The first accused was driving the vehicle. On a search conducted on the lorry, it was found that the lorry was carrying hollow bricks. It was searched and found that beneath the hollow bricks, 94 cans of 35 litres capacity with 93 cans containing 33 litres of spirit and one can containing 10 litres of spirit totaling to 3265 litres, were concealed. Samples of 100 ml each from each can were drawn and the sample bottles were sealed. After completion of all initial Crl.A.No.1479/2011 2 formalities, both accused were arrested and crime was filed before the Magistrate Court. On completion of the investigation by PW4, final report was laid for offences punishable under Sections 8(1)& (2) and 55 (a) of the Abkari Act However, the first accused alone was available for trial and the remaining accused remained elusive. On the side of the prosecution PWs 1 to 5 were examined and Exhibits P1 to P9 were marked. MO1 to MO3 series material objects were identified. There was no defence evidence. The trial court, on an evaluation of all the available materials, found the accused guilty, convicted and sentenced to undergo RI for five years and to pay a fine of Rs.2 Lakhs and in default to undergo RI for one year for offence punishable under section 8(2), and to undergo RI for five years and to pay a fine of Rs. 2 Lakhs and in default to undergo RI for one year under Section 55 (1) of the Abkari Act. 3. Aggrieved by the above conviction and sentence, the first accused has preferred this appeal. Heard both sides and examined the records. 4. Prosecution essentially relied on the oral testimony of PW5, the Excise Inspector of Special Squad, who was the Crl.A.No.1479/2011 3 detecting officer. He deposed that on the relevant day, he had intercepted the vehicle, while the first accused was found driving the vehicle and the second accused was sitting on the left side. At the time of interception, another lorry also reached the spot and with the assistance of driver and cleaner of that vehicle, the hollow bricks kept on the rear side of the lorry was removed and the contraband articles seized. He deposed in terms of the interception, search and drawing of samples. PW1 was the Preventive officer of the Vandiperiyar Excise Range, who thereafter took custody of the vehicle from the detecting officer along with the contraband items. PW2 was the village officer, who prepared the scene mahazar marked as Ext.P2. PW3 claimed to be an independent witness who did not support the prosecution case except admitting his signature in Ext.P3 Mahazar. PW4, the Excise Circle Inspector, was investigating officer. 5. The defence set up by the first accused was one of total denial. According to him, he got into the vehicle at Dindigal and the second accused was driving the vehicle. He was only a friend of the second accused and was travelling in the vehicle as Crl.A.No.1479/2011 4 its cleaner. He contended that he was unaware of the presence of contraband. 6. The learned counsel for the accused assailed the prosecution case on the various grounds. Ext.P3 is the seizure mahazar wherein the details regarding interception, search and sampling was mentioned in detail. It was reported that the spirit was meant for one Biju, who was arrayed as the third accused. According to the prosecution, the vehicle was handed over to the first accused at Theni and a mobile phone was also handed over. It is stated in the seizure mahazar that Biju used to contact the accused in the meanwhile. However, this part of the allegation is not proved by any evidence. Ext.P7 is the arrest intimation. It shows that the arrest of the accused was intimated to his family members on the next day at 10.51 a.m. A receipt in token for making phone call was also affixed along with Ext.P7. Evidently, Exts.P1 and P8 reached the court on 2/4/2009 at 2.20. p.m. Ext.P8 shows that the various seized items were produced in the court. The accused was also produced along with the contraband items. It clearly shows that the accused, the contemporaneous documents and the thondi list reached the court on time. There Crl.A.No.1479/2011 5 is nothing to hold that there was any delay in producing the accused and the documents before court. Ext.P5 is the chemical analysis report which shows that all the samples contained ethyl alcohol at percentages varying from 89% to 90%. 7. The learned counsel for the accused contended that there was no sufficient evidence to establish the identity of the accused and that he was not driving the vehicle at the relevant time. However, evidence of PW5, the detecting officer, is consistent. His evidence is corroborated by the seizure mahazar as well as Ext.P7 arrest intimation. Those materials convincingly show that the accused was arrested at the spot and there is nothing to doubt the categorical assertion of the detecting officer that the first accused was found driving the vehicle. 8. The learned counsel for the accused vehemently contended that the accused stood charged both under Section 8 (1) & (2) and Section 55 (a) of the Abkari Act. According to the learned counsel, both the above sections were not distinct and separate and that there could not have been conviction for both on the same facts and circumstances of the case. The court below seems to have relied on the decision in **Jose v. State of** Crl.A.No.1479/2011 6 **Kerala[2007(2) KLT 202]** wherein this court held that there was possession of large quantity of spirit, the possession of which was incidental and in connection to the transportation. The court below relied on the above principle to convict the accused on both the grounds. However, in that decision this Court had held that except for the ingredient of “knowledge” mentioned in Section 8 which is a conscious mental state, there does not appear to be much difference or distinction between Sections, 7, 55(a) and Section 58 of Abkari Act, so far as the transport of arrack is concerned. 9. The learned counsel for the accused relying on the decision in **Prakasan A.T. v. The Excise Inspector and Another [2014 (2) KHC 198]** ,contended that the court below in that case had found that the accused was wrongly charged and convicted under Section 55(a) instead of Section 8(1) of the Act. The Hon'ble Supreme Court held that offence therein was committed in the year 1999 and hence he could have been charge sheeted only under Section 8 of the Act and not under Section 55 (a) of the Act, which would apply only in cases of liquid and intoxicated drug other than arrack. The Apex Court Crl.A.No.1479/2011 7 held that proper section which would be attracted in that case was Section 8(1) of the Abkari Act and, that misquoting or misapplying the provisions has caused no prejudice to the appellant and the offence under Section 55(a) can be altered one under Section 8 (1) of the Act. In the case at hand, the accused was not only found in possession of huge quantity of spirit, but was also found transporting it. The ingredients in both appears to be overlapping. 10. Learned counsel for the accused vehemently contended that the residue of the material objects in relation to the contraband items were not produced in court. It was contended that this touches upon the reliability of the evidence tendered by the prosecution. It was further contended that this will affect the credibility of the prosecution case also. To buttress this argument, learned counsel relied on the decision reported in **Narayana Velichappada v. Sub Inspector of Police & another[2007 (4) KHC 748].** It was contended that even though contraband articles were claimed to have been destroyed by the investigating agency, no photographs and report were produced to substantiate it in accordance with Section 53A of Crl.A.No.1479/2011 8 the Abkari Act. Learned counsel further relied on the decision in **Vijay Jain v. State of M.P.(Crl.Appeal No.486/2013)** wherein the Hon'ble Supreme Court has also dealt with the destruction of the contraband, preparation of inventory and also the photographs. Learned counsel further relying on the decision of this Court in **Joseph v .State of Kerala (Crl.A.No.276/2003),** contended that forwarding note was not produced herein to show that the contraband articles reached the court in sealed condition and thereafter samples were forwarded and that the same sample had reached the lab. It was contended that all the above decisions prove that the infirmities in the case at hand were fatal and hence, the accused is entitled for the acquittal. 11 **.** It is pertinent to note that none of the above decisions hold that non production of the contraband articles alone will be fatal. In other words, non production of the contraband articles by itself was not held as a single reason for the acquittal. Evidently, non production of the forwarding note and non compliance of Section 53A along with other infirmities, may render the entire prosecution case suspect and result in acquittal of the accused. Crl.A.No.1479/2011 9 12. It is true that forwarding note has not been produced. There is absolutely no evidence to indicate that there was compliance of Section 53A. Ext.A8 itself shows that all the material objects reached the court in sealed condition and except the sample, the main contraband items were returned. They were verified by the office of the court and were returned as revealed from the endorsement. Case file shows that, thereafter by the order of the learned Magistrate on the basis of the report of the Abkari Officers, destruction of the cans were ordered under Section 53A. The file further reveals the inventory of the items to be disposed of with its details signed by the Deputy Commissioner of Excise, Idukki dated 13/5/2009 was submitted. By covering letter it was requested that thondi items may be permitted to be disposed of. It was allowed by the order of the Court below on 18/6/2009. Thereafter, it was destroyed. The report of the Magistrate dated 23/6/2009 is also seen on the file. The photographs of the thondi articles were also taken, which also seen in the file. Evidently, prosecution failed to bring all these materials documents in evidence and to mark it. Evidently, absolute lethargy on the side of the prosecution is Crl.A.No.1479/2011 10 evident from the record. This is a matter liable to be enquired into by the prosecuting agency and to fix the responsibility. 13. It is true that forwarding note was also not brought on record. By decision in **Sasidharan v. State of Kerala [2007) 1 KLT 720]** , it was held that in the absence of forwarding note, the link evidence may be absent and on that ground the prosecution may fail. The above decision shows that it was a case wherein the sampling was conducted by the court. The thondi clerk was also not examined in the light of the decision in Joseph v.State of Kerala (supra). In that case no reason was forthcoming as to why the forwarding note was also not produced. However, in this case sampling was conducted at the spot itself and the evidence indicate that the same sample reached the court intact. In Ext.P3 mahazar, the seal is seen affixed. Ext.P8 list of property shows that there is an endorsement by the Magistrate dated 2/4/2009 to verify and receive. Thereafter, seal affixed by the office shows that it has been verified and received as PR 61/2009. Sample seal is again seen affixed on a paper attached to the list of properties. There is an endorsement dated 3[rd] to return all the material objects Crl.A.No.1479/2011 11 except samples.Sample was thereafter forwarded for chemical examination. PR number noted in the report of the chemical anaylist marked as Ext.P5 refers to PR No.61/2009. It is clear that it relates to the sample in the case at hand. Since there is sufficient evidence to show that the sample reached the court intact, accepted by the office and was forwarded in the same condition and there is a counter statement by the chemical analysist that the sample covered by PR 61/2009 reached intact, even in the absence of forwarding note, there is sufficient link evidence to give assurance that there was no tampering in the meanwhile. Further tampering is not something which can be readily inferred. 14. In the above circumstances, I find no reason to suspect the prosecution case . Evidence tendered by the detecting officer is strictly in conformity with the oral evidence tendered by the other witnesses,supporting evidences and gets due corroboration from the contemporaneous documents. In the above circumstances, I am not inclined to hold that the prosecution failed in proving the case beyond doubt. The court below, on proper evaluation of the records, came to the proper conclusion, Crl.A.No.1479/2011 12 which is liable to be sustained. 15. The court below had imposed sentence under Section 8(2) and Section 55(a) of the Abkari Act. For the reason mentioned above, I find that separate sentence is not required with respect to both the offences. I feel that conviction under Section 55(a) of the Abkari Act will serve the interest of justice. However, the court below has imposed a punishment of five years and to pay a fine of Rs. One Lakh and in default to undergo RI for one year. The direction to undergo five years RI and fine are on the higher side. The petitioner has undergone custody from 1-4-2009 to 5-6-2009 prior to the trial. Records of this court also show that the petitioner was in custody from 16/8/2011 to 6/6/2013, on which day, he was granted bail. Evidently, he had been in custody for the above two years. Having regard to the fact that even according to the prosecution he was only driving the vehicle and there is nothing to show that he had a proprietary interest over the contraband items and also that he has only committed the offence on behalf of somebody else, I feel that sentence already undergone by him can be treated as sufficient sentence for the conviction under Section Crl.A.No.1479/2011 13 55 (a) of the Kerala Abkari Act inclusive of the default sentence for a fine which is imposed as Rs. One Lakh. In the result, the appeal is allowed in part. While maintaining the conviction under Section 55(a), the sentence imposed by the court below is confined to the period of detention he has already undergone in connection with the present crime inclusive of the default sentence for non payment of fine of Rs One Lakh. ## **Sd/-** **SUNIL THOMAS Judge** dpk /true copy/ PS to Judge. Crl.A.No.1479/2011 14