Rineeth v. State of Kerala; Shaju v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH TUESDAY, THE 23[RD] DAY OF NOVEMBER 2021/ 2ND AGRAHAYANA, 1943 CRL.A NO. 536 OF 2007** **AGAINST THE JUDGMENT IN SC 362/2005 OF ADDITIONAL DISTRICT COURT, FAST TRACK (ADHOC-1), KOZHIKODE** ## **APPELLANT/1ST ACCUSED:** RINEETH, S/O SREEDHARAN, MANAKKARA HOUSE, KOLAYITHAZHAM,, KUNNAMANGALAM AMSOM, KARANTHUR DESOM,, KOZHIKODE TALUK. BY ADV SRI.T.G.RAJENDRAN ## **RESPONDENTS/COMPLAINANT & STATE:** 1 THE EXCISE INSPECTOR, KUNNAMANGALAM RANGE. 2 STATE OF KERALA REP. BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA,, ERNAKULAM. SRI SANAL P RAJ,PP THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.11.2021, ALONG WITH CRL.A.756/2007, THE COURT ON 23.11.2021 DELIVERED THE FOLLOWING: Crl.Appeal Nos.536 & 756/2007 -:2:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH TUESDAY, THE 23[RD] DAY OF NOVEMBER 2021/2ND AGRAHAYANA, 1943 CRL.A NO. 756 OF 2007** **AGAINST THE JUDGMENT IN SC 362/2005 OF ADDITIONAL DISTRICT COURT, FAST TRACK (ADHOC-1), KOZHIKODE** ## **APPELLANT/ACCUSED NO.2:** SHAJU, S/O VELAYUDHAN, AGED 33 YEARS, RESIDING AT MOOTHTTUMANNIL HOUSE, KUNNAMANGALAM, AMSOM, KARANTHUR DESOM, KOZHIKODE TALUK. BY ADVS. SRI.C.S.MANU SRI.S.K.PREMRAJ ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR,, KUNNAMANGALAM EXCISE RANGE, KUNNAMANGALAM AMSOM,, KARANTHUR TALUK NOTICE TO WHOM MAY BE SERVED UPON, THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY ADV.SANAL P.RAJ, PP THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.11.2021, ALONG WITH CRL.A.536/2007, THE COURT ON 23.11.2021 DELIVERED THE FOLLOWING: Crl.Appeal Nos.536 & 756/2007 ## -:3:- J U D G M E N T Dated this the 23[rd ] day of November, 2021 These appeals are filed by the accused Nos.1 and 2 in SC No.362/2005 on the file of the Additional Sessions Court, Fast Track (Adhoc-1), Kozhikode against the judgment dated 15/3/2007 convicting them u/s 8(1) and (2) of the Abkari Act. 2. The prosecution case in short is that on 13/1/2003 at 8.30 p.m, the accused Nos.1 and 2 were found in possession of 15 litres of arrack in two black plastic cans in the autorickshaw bearing Reg.No.KL-11G 2095 in contravention of the Abkari Act and the Rules and thereby committed the offence. 3. On receipt of summons, both accused appeared at the Court below. After hearing both sides, the Court below framed charge against the accused under Sections 8(1), (2) and 67B of the Abkari Act. The charge was read over and explained to the accused who pleaded not guilty. The prosecution examined PWs 1 to 7 and marked Exts.P1 to P11. MO1 and MO2 were identified. DW1 and DW2 were examined and Exts.D1 and D2 were marked Crl.Appeal Nos.536 & 756/2007 -:4:- on the side of the defence. After trial, the Court below found both the accused guilty u/s 8(1) and (2) of the Abkari Act and convicted them for the said offence. The accused were sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of `1,00,000/- each, in default to suffer rigorous imprisonment for 6 months each. Challenging the conviction and sentence, the 1[st] accused preferred Crl.Appeal No.536/2007 and the 2[nd] accused preferred Crl.Appeal No.756/2007. 4. I have heard Sri T.G.Rajendran, the learned counsel for the 1[st ] accused, Sri.S.K.Premraj, the learned counsel for the 2[nd] accused and Sri.Sanal P.Raj, the learned Public Prosecutor. 5. The learned counsel appearing for the appellants impeached the findings of the Court below and appreciation of evidence and resultant finding as to the guilt. The learned counsel for the 1[st] accused submitted that PW1 who detected the offence was not an authorised officer and hence, the entire detection and investigation is vitiated. On merits, the learned counsel submitted that the first accused is only an auto driver and admittedly the seizure was from the possession of the 2[nd] accused who was sitting on the passenger seat and hence, Crl.Appeal Nos.536 & 756/2007 -:5:- conscious possession cannot be attributed as against the first accused. The learned counsel for the 2[nd] accused submitted that there is undue delay of 1½ years in completing the investigation and filing the final report. The learned counsel further submitted that the contraband found in the autorickshaw was in fact carried by the first accused, and the second accused, who was only a passenger, has no connection whatsoever with the same. The counsel also submitted that the thondi clerk of the Court was not examined to prove that contraband was forwarded from the Court for chemical analysis. 6. PW1 is the detecting officer. He was the preventive officer at Excise Intelligence Squad, Kozhikode. According to the learned counsel for the first accused, he was not authorised or empowered to detect or investigate the abkari offence. I cannot subscribe to the said argument. As per SRO No.361/2009, the officers mentioned in column 1 of the Schedule therein was authorized to exercise and perform the duties specified in that column within jurisdiction over the area specified against each in column 2 of the said Schedule. As per column 14 of the Schedule, Preventive Officers of the Excise Department on duty Crl.Appeal Nos.536 & 756/2007 -:6:- within the Kerala State has been authorised to exercise all powers conferred and to perform all duties assigned on Abkari Officers under the sections mentioned therein within their respective jurisdiction. PW1 was a Preventive Officer of the Excise department. Thus, he is an authorized officer. That apart, the competency of PW1 was not challenged by the accused at the Court below. In so far as the argument raised by the learned counsel for the second accused regarding the delay in completing the investigation, the counsel could not point out that any prejudice has been caused to the accused on account of the said delay. 7. PW1, the detecting officer, and PW2, the excise guard who accompanied PW1 gave consistent evidence regarding the arrest of the accused, search and seizure of the contraband substance from them and its sampling. Their evidence would show that on 13/1/2003, at about 8.30 p.m, PW1 and PW2 were coming in an autorickshaw bearing Regn.No.KL-11G 2095 to Kunnamangalam-Chethukadavu road. The accused No.1 was driving the autorickshaw and the accused No.2 was sitting in the passenger seat. When they reached in front of A.K.V. Driving Crl.Appeal Nos.536 & 756/2007 -:7:- School, PW1 and PW2 stopped the autorickshaw and on inspection they could find two black plastic cans having a capacity of 10 litres and 5 litres respectively kept in between the legs of accused No.2. PW1 seized it and arrested the accused. Thereafter, the sample was drawn from it and it was properly packed, sealed and labelled. The search, seizure and arrest of the accused were amply proved by the evidence of PW1 and PW2. That apart, both accused admit the seizure of the contraband substance from the back seat of the autorickshaw. In fact, they accuse each other. The accused No.1 gave evidence as DW2 and accused No.2 gave evidence as DW1. The case of accused No.1 is that while he was driving the autorickshaw, the accused No.2 hired it and he was carrying with him two plastic cans (MO1 and MO2). He further deposed that the accused No.2 stated that the can contained coconut oil. He further deposed that the accused No.2 kept it in the passenger seat on the back side of the autorickshaw in between his legs. According to him, he had no connection whatsoever with the contraband substance seized. On the other hand, accused No.2 gave evidence that on 13/1/2003 at 7.00 p.m, in order to go to his house, he hired the Crl.Appeal Nos.536 & 756/2007 -:8:- autorickshaw of the accused No.1 and when got into the autorickshaw, he could notice two jerry cans (MO1 and MO2) on the back seat of the autorickshaw. When asked, accused No.1 told him that it was oil meant for the temple. He also took the plea that he has no connection whatsoever with the said contraband substance seized. Both of them admitted that PW1 and PW2 intercepted them, seized MO1 and MO2, drew sample from it and they were also arrested. Thus, in fact, the search and seizure of the contraband substance as well as the arrest of the accused were admitted by the accused. 8. Ext.P5 is the seizure mahazar. It contains sample seal. The seizure was on 13/1/2003 at 8.30 p.m. Ext.P8 is the property list. It would show that the seized contraband substance and sample drawn from it were produced at the Court without delay on the next day itself. Ext.P9 is the forwarding note. It would show that on 14/1/2003 itself, the sample was forwarded for chemical analysis. Ext.P9 contains the specimen seal and the name of the excise guard through whom the sample was sent for chemical analysis. Ext.P10 is the chemical analysis report. It would show that the seals of the packet of the bottle were intact Crl.Appeal Nos.536 & 756/2007 -:9:- and found tallied with the sample seal provided. It would further show that sample received for analysis was clear and a colourless liquid and that it contained 36.53% and 36.78% by volume of ethyl alcohol. 9. The learned counsel for the second accused relying on the latest decision of a learned Single Judge of this Court in _**Sajeevan v. State of Kerala**_ (2020 (6) KLT 53) has argued that for constructive possession to become penal in nature, there must be something more than mere deemed possession and for the simple reason that the second accused happened to be a passenger in the autorickshaw, it cannot be inferred that he was in conscious possession of the contraband article seized from the autorickshaw. I cannot subscribe to the said argument. The evidence on record would show that the second accused was in actual possession of the contraband substance seized. PW1 deposed that the MO1 and MO2 cans were found kept on the back side of the autorickshaw in between the legs of accused No.2. He added that in fact, MO1 and MO2 were kept concealed in between the legs of the second accused. Both PW1 and PW2 deposed that on seeing them, accused No.2 sitting on the back Crl.Appeal Nos.536 & 756/2007 -:10:- seat got perplexed. The accused No.1 was wearing uniform. Both accused admitted that accused No.2 hired the autorickshaw of the accused No.1. The case set up by the accused No.2 that when he got into the autorickshaw, MO1 and MO2 were already there in the back side cannot be swallowed without a pinch of salt. When a passenger enters into the autorickshaw with plastic can, normally the driver would not check the same. An auto driver cannot suspect that a passenger would carry contraband substance with him. There is no charge for conspiracy u/s 34 of IPC. In these circumstances, I am of the view that for the simple reason that the accused No.1 happened to be the driver of the autorickshaw in which accused No.2 carried the contraband substance, it cannot be inferred that he was having consciousness or knowledge of the contraband seized. Hence, the conviction passed by the Court below as against accused No.1 cannot be sustained. The prosecution has established beyond reasonable doubt that the accused No.2 was in conscious possession of the contraband seized from the autorickshaw. Hence, the conviction passed by the Court below against him is only to be confirmed. However considering the facts and Crl.Appeal Nos.536 & 756/2007 **==> picture [44 x 9] intentionally omitted <==** circumstances of the case, I am of the view that substantive sentence imposed by the court below can be reduced to one year. 10. In the light of the above findings, the conviction and sentence passed by the Court below against the first accused is set aside. He is found not guilty of the offence charged against him and accordingly, he is acquitted. The conviction passed by the court below against the second accused is confirmed. The substantive sentence passed against him is reduced to rigorous imprisonment for one year with no change in fine and default sentence. The appeals are disposed of as above. **Sd/-** **DR. KAUSER EDAPPAGATH** **JUDGE** **Rp**