Sasidharan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **MONDAY, THE 3RD DAY OF OCTOBER 2016/11TH ASWINA, 1938** ## **CRL.A.No. 223 of 2009** **-------------------------------** **SC.1436/2005 OF ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC-I), KOLLAM DATED 08-01-2009 CP.116/2002 OF JUDICIAL FIRST CLASS MAGISTRATE COURT- I, KARUNAGAPPALLY** **--------------------** **APPELLANT(S)/ACCUSED::** **---------------------------------------** **SASIDHARAN, S/O.DHAMODHARAN, ILALMBADATHU VADAKKATHIL, PAVUMPA THEKKU MURI, PAVUMPA VILLAGE, KOLLAM DISTRICT.** **BY ADV. SRI.C.RAJENDRAN** **RESPONDENT(S)/COMPLAINANT::** **-------------------------------------------------** **STATE OF KERALA- REPRESENTED BY** **SUB INSPECTOR OF POLICE, KARUNAGAPPALLY EXCISE RANGE, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **B. KEMAL PASHA, J.** ................................................................ Crl. Appeal No. 223 of 2009 ............................................................... Dated this the 3[rd] day of October, 2016 ## **J U D G M E N T** The appellant is the accused in S.C.No.1436/05 of the Additional Sessions Court(Adhoc-I), Kollam, who stands convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of ₹1 lakh, in default, to undergo simple imprisonment for three more months. 2. The prosecution case is that on 03.07.2000 at 6.30 p.m., the appellant was found transporting 12 plastic covers, each containing 150 ml of arrack by scooter bearing Reg.No.KL4A-1871, through the road leading to Pavumpa Kurissadi mukku, Pavumpa thekkum muri, Pavumpa Village, in contravention of the provisions of the Abkari Act. 3. The appellant had allegedly ran away from the spot after leaving the scooter and the contraband on seeing Crl. Appeal No. 223 of 2009 -: 2 :- the excise party. The offence was detected by PW1, Preventive Officer of Excise Circle Office, Karunagappally, while he was on patrol duty. He seized the contraband through Ext.P1 mahazar. Samples were drawn from two covers. He placed the appellant under arrest through Ext.P3 arrest memo. He took the accused, the properties and records to the Excise Office, Karunagappally. PW5 Excise Inspector, Karunagappally registered Ext.P5 crime and occurrence report. He produced the properties before court through Ext.P6 property list. Forwarding Note was furnished. PW6, Excise Inspector, Karunagappally conducted the investigation and filed the final report on getting Ext.P8 certificate of chemical analysis. 4. Since no vehicular documents were available from the scooter, enquiries were made at the RTO office and consequently, the registered owner of the vehicle could be traced out. Since the registered owner could not produce any documents pertaining to the transfer of the vehicle in Crl. Appeal No. 223 of 2009 -: 3 :- favour of the appellant, the registered owner was arraigned as A2 in the case. Subsequently, the court below discharged A2 at the stage of Section 227 Cr.P.C. 5. On the side of the prosecution, PWs.1 to 7 were examined, Exts.P1 to P10 were marked, and MOs.I to VI were identified. No defence evidence was 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. 6. Heard the learned counsel for the appellant and the learned Public Prosecutor. 7. The learned counsel for the appellant has argued that there are no grounds to convict the accused for the offence under Section 8(2) of the Abkari Act, and the conviction and sentence passed by the court below are liable to be set aside. It has been argued that the vehicle belongs to A2 and there was nothing to connect the appellant with the vehicle. Crl. Appeal No. 223 of 2009 -: 4 :- 8. PW1 Preventive Officer, who detected the offence, has deposed that he could see the appellant riding on the scooter and on seeing the excise party, the accused ran away from the spot after leaving the scooter on the road side. He was chased and apprehended. Samples were drawn from two covers of arrack. PW4 was another Preventive Officer who was present along with PW1. He has also fully supported the versions of PW1. The evidence of PW1 is fully corroborated by the evidence of PW4. 9. PW5 was the Excise Inspector, Karunagappally before whom the accused along with the properties and records were produced by PW1. PW5 registered Ext.P5 crime and occurrence report. He has produced the properties immediately before court through Ext.P6 property list. PW7 is the property clerk of the Judicial First Class Magistrate's Court, Karunagappally, who has proved the production of the contraband and samples before court on 05.07.2000. Ext.P8 is the certificate of chemical analysis Crl. Appeal No. 223 of 2009 -: 5 :- which clearly shows that the sample contained 21.43% by volume of ethyl alcohol. 10. The question to be considered is whether the contraband was arrack in order to invite an offence punishable under Section 8(2) of the Abkari Act. Both PW1 and PW4, who were experienced excise officials, have deposed that they could identify the contraband liquor as arrack by smelling and tasting it. Ext.P8, coupled with the evidence of PW1 and PW4, clearly prove that the contraband item was arrack. There is nothing to rope in A2 in the case because the scooter was being ridden by the appellant. Both PW1 and PW4 could identify the appellant as the person who was riding the scooter. True that A2 was the registered owner. At the same time, the excise officials have no case that A2 was found riding the scooter either as rider or pillion rider. His presence was not there. 11. From the evidence as a whole, this Court is satisfied that there is sufficient evidence to prove that the Crl. Appeal No. 223 of 2009 -: 6 :- appellant has committed an offence punishable under Section 8(2) of the Abkari Act. There is absolutely nothing to interfere with the conviction. 12. The learned counsel for the appellant has sought for the leniency in the question of sentence on the ground that the incident had occurred in the year 2000 and that the appellant had undergone detention for 24 days. Considering the small quantity of contraband involved in this case and going by the decision of the Apex Court in _**Sasikumar v. State of Kerala** [2012 (4) KLT 867 (SC)]_ , this Court is of the view that the appellant is entitled to maximum possible leniency in the question of sentence. This Court is of the view that a sentence of simple imprisonment for one month and to pay a fine of ₹1 lakh, in default, to undergo simple imprisonment for 15 days more, will meet the ends of justice in this case. In the result, this Criminal Appeal is allowed in part by maintaining the conviction and modifying the sentence as Crl. Appeal No. 223 of 2009 -: 7 :- ## follows: “The appellant is sentenced to undergo simple imprisonment for one month and to pay a fine of ₹1 lakh, in default, to undergo simple imprisonment for 15 days more. It is made clear that the appellant is entitled to set off, of the period of detention already undergone by him in connection with the investigation, inquiry and trial of this case, under Section 428 Cr.P.C.” ## **Sd/- B. KEMAL PASHA, JUDGE.** ul/- // true copy // P.S. to Judge.