ReyNI @ Gilbert v. State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **WEDNESDAY, THE 27TH DAY OF JULY 2016/5TH SRAVANA, 1938** **CRL.A.No. 146 of 2009 ( ) --------------------------** **SC 460/2006 of ADDITIONAL SESSIONS COURT (ADHOC-II), KALPETTA** **APPELLANT/ACCUSED: ------------------** **REYNI @ GILBERT, S/O.EDWARD, KUTTINJAL VEEDU, KADACHIKUNNU, MUPPAINADU, WAYANAD DISTRICT.** ## **BY ADV. SRI.GRASHIOUS KURIAKOSE** **RESPONDENT/COMPLAINANT: -----------------------** **STATE - EXCISE INSPECTOR, KALPETTA EXCISE RANGE OFFICE, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.HYMA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DSV/1/8/16** B. KEMAL PASHA, J ================= Crl.Appeal No.146 of 2009 ================= Dated this the 27[th] day of July, 2016 J U D G M E N T The appellant is the accused in S.C.No.460 of 2006 of the Additional Sessions Court (Adhoc-II), Kalpetta, who stands convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of `1,00,000/-, in default to undergo rigorous imprisonment for three more months. 2. The prosecution case is that on 23.01.2006, after 8.45 a.m., the accused was found in possession of 5 litres of arrack at a place called Kadachikkunnu, in contravention of the provisions of the Abkari Act. 2 Crl.A.No.146 of 2009 3. The offence was detected by PW-1, Preventive Officer of Excise, Kalpetta Excise Range. He placed the accused under arrest through Exhibit-P1 arrest memo. A sample of 200 ml of arrack was drawn. The contraband and the sample were seized through Exhibit-P2 mahazar. The accused along with the contraband, sample and the records were produced before PW-6, Excise Inspector, Kalpetta on the same day. He registered C.R.No.3 of 2006 through ExhibitP5 crime and occurrence report. On the same day, he produced the accused along with the contraband and the sample before court. Exhibit-P6 is the property list. He furnished the forwarding note, the copy of which is Exhibit-P7. PW-5, Excise Inspector, Kalpetta, conducted the investigation. On getting Exhibit-P4 certificate of chemical analysis, he filed the complaint. 4. On the side of the prosecution, PW-1 to PW-6 were examined, Exhibits-P1 to P7 were marked and MO-1 was identified. No defence evidence was Crl.A.No.146 of 2009 3 adduced. The court below found the accused guilty of the offence punishable under Section 8(2) of the Abkari Act, convicted him thereunder and sentenced him as aforesaid. 5. Heard the learned Senior Counsel for the appellant and the learned Public Prosecutor. 6. The learned Senior Counsel for the appellant has argued that there are material contradictions in the evidence of PW-1 and PW-2 regarding the incident and in the absence of any further corroborative piece of evidence, the evidence of PW-1 and PW-2 cannot be relied on. 7. According to PW-1, on getting information regarding the brewing of arrack by the accused at his house, they headed towards the house of the accused. When they reached near the house of the accused, they could see the accused coming with a can containing the said quantity of arrack on the road just in front of the house of the accused. Even though the Crl.A.No.146 of 2009 4 accused attempted to move away, he was stopped, and it could be seen that he was holding the can containing 5 litres of arrack. After that, in order to examine whether the accused was keeping any other incriminating materials in the house, they went in search of the house. In the search, nothing could be traced out. Therefore, they came back again, a sample of 200 ml was drawn from the contraband and completed other formalities including the preparation of the mahazar. 8. According to PW-2, he had assisted PW-1 in the seizure as well as preparation of mahazar etc. In cross-examination, PW-2 has deposed that it was after completing all the formalities in respect of the contraband and after the taking of sample and preparation of mahazar that they went to the house of the accused and conducted a search. In literal sense, true that there is a contradiction. At the same time, the said contradiction is not at all material because of Crl.A.No.146 of 2009 5 the fact that in the so called search allegedly conducted at the house of the accused, nothing could be traced out. Had there been any seizure of contraband from the house of the accused, the said contradiction could have been vital and material. 9. Apart for the above, the swift action taken by PW-6 in the matter also has to be considered. Immediately he registered the crime, prepared the property list and the forwarding note. On the same day, the accused along with the material objects and sample were produced before court. On an overall evaluation of the evidence in the case and on hearing either side, this Court is satisfied that the prosecution could establish the guilt of the accused beyond doubt. There is absolutely nothing to interfere with the conviction passed by the court below. 10. Regarding sentence, the learned Senior Counsel for the appellant has pointed out that the sentence imposed by the court below is too harsh and Crl.A.No.146 of 2009 6 considering the small quantity of the contraband involved in this case, the accused is entitled to the maximum possible leniency. It is also pointed out by the learned Senior Counsel that the appellant is a cancer patient. On going through the decision of the Apex Court in Sasikumar and another v. State of Kerala [2012 (4) KLT 867 (SC)] followed by this Court in Rajan v. State of Kerala [2013 (3) KLT 654], the appellant is entitled to maximum possible leniency in the question of sentence. This Court is satisfied that a sentence of simple imprisonment for two months and to pay a fine of `1,00,000/-, in default to undergo simple imprisonment for 15 more days, will meet the ends of justice in this case. In the result, this Crl.Appeal is allowed in part by maintaining the conviction and by modifying the sentence as follows: The appellant is sentenced to undergo a simple imprisonment for two months and to pay a fine of Crl.A.No.146 of 2009 7 `1,00,000/-, in default to undergo simple imprisonment for 15 more days. It is made clear that the appellant is entitled to set off, of the period undergone by him in custody in connection with the investigation, inquiry and trial of this case under Section 428 Cr.P.C. Sd/- B. KEMAL PASHA, JUDGE. DSV/28/7/16 // True Copy // P.A. To Judge