Shaji v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **MONDAY, THE 30TH DAY OF NOVEMBER 2015/9TH AGRAHAYANA, 1937** **CRL.A.No. 1131 of 2011 ( ) --------------------------AGAINST THE JUDGMENT IN SC 499/2010 of ADDITIONAL SESSIONS COURT (ADHOC) III, PALAKKAD DATED 25.06.2011** **APPELLANT/ACCUSED:** **------------------** **SHAJI, S/O.THANKAN, CHIRAYIL (H), CHUNGATHARA, NILAMBUR.** **BY ADV. SRI.G.PRIYADARSAN THAMPI** **RESPONDENT/STATE: -----------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR: SRI ABHIJITH LESLIE** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-11-2015, THE COURT ON 30-11-2015 DELIVERED THE FOLLOWING:** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **Crl.A. No. 1131 of 2011** - - - - - - - - - - - - - - - - - - Dated this the 30[th] day November , 2015 ## **JUDGMENT** The accused who stands convicted for offence punishable under Section 55(a) of the Akari Act is the appellant herein. 2. The allegation of the prosecution is that on 24/3/2009 while the Circle Inspector of Excise, Special Squad, was on his duty, at about 2.30 p.m. he got a secret information regarding the transportation of illicit spirit. Immediately, he proceeded to the spot and intercepted a lorry bearing No.TN49AA-6348. Driver and helper were found in the cabin. At the time of inspection, the helper got down from the vehicle and escaped. The driver was intercepted, who disclosed that the vehicle had a secret chamber in between the platform of the vehicle. It was opened and found that 102 cans of 33 litres capacity containing 32 liters of spirit, totaling 3264 litres were kept concealed in the secret chamber. The driver disclosed that it was being transported from Coimbatore to Chalakudy at the instance of one Vimal of Coimbatore. Samples of 300 2 Crl.A.No.1131/2011 ml. from the first can were drawn. Thereafter, samples were sealed and on completion of the legal formalities, the accused was arrested and thereafter produced before the Magistrate. Investigation was completed by PW5 & PW6 and final report was laid before the court. The accused pleaded not guilty and demanded trial. On the side of the prosecution, PWs 1 to 6 were examined and Exts.P1 to P11 were marked. No material object was identified. On the basis of the available materials, the court below concluded that the accused was guilty of the offence punishable under Section 55(a) of the Abkari Act, convicted and sentenced him to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,00,000/- and in default to undergo RI for one year. 3. This is assailed in this appeal. Heard and examined the records. 4. The allegation of the prosecution is sought to be established through the oral testimony of PW1, the detecting officer, corroborated by the oral testimony of PW2, the Assistant Excise Inspector, who also claimed to be present, PWs 3 and 4 who were claimed to be independent witnesses to the seizure. 3 Crl.A.No.1131/2011 They were sought to be corroborated by the contemporaneous documents which were Exts.P1 and P3 arrest memo and arrest intimation respectively. 5. PW1 in his evidence deposed in accordance with the prosecution case. He gave the details of secret information, interception, search and the drawing of samples from a can. He deposed that since all other cans contained liquid with same colour, taste and smell, samples were not separately drawn from them. Version spoken by PW1 was generally corroborated by PW2 who was the Assistant Excise Inspector. He deposed that he was informed by PW1 regarding the proposed interception and he reached the spot. He also deposed in tune with the oral testimony of PW1 touching upon the interception, search and drawing of samples. 6. PWs 3 and 4 were two local persons who, though admitted their signatures in the seizure mahazar marked as Ext.P2, denied the main details regarding the interception. According to them, contents of Ext.P2 seizure mahazar were not read over to them and they signed it without understanding the contents of the documents. PWs 5 and 6 were the investigating 4 Crl.A.No.1131/2011 officers, who conducted the investigation and ultimately laid the charge. 7. Versions of PWs 1 and 2 appear to be generally uniform and they get corroboration from Ext.P2 seizure mahazar supported by Exts.P1 and P3. Even though PWs 3 and 4 did not support the prosecution case in its entirety, they admitted their signatures in Ext.P2 mahazar. It is evident from their version that the incident, as alleged by the prosecution, had happened. Even according them, seizure mahazar was signed by them at the spot. They have no case that they have signed blank papers. In the above circumstances, I am not inclined to believe the version of PW3 and PW4 that they had not seen the incident. However, the fact that they have signed Ext.P2 mahazar at the spot supported the prosecution case to a limited extent. Hence, they cannot be heard to depose that they have not witnessed the factual details mentioned in Ext.P2 seizure mahazar. 8. Exts.P1 and P3 are the arrest memo and the arrest intimation respectively. Ext.P1 arrest memo bears the signature of the accused and his thumb impression. Ext.P3 is the arrest intimation given to his wife. Pursuant to the seizure, Ext.P4 5 Crl.A.No.1131/2011 crime and occurrence report was prepared on the same day. Ext.P5 property list reached the court at 8 p.m. on the same day. Evidently, it indicates that the samples along with the contraband items, which were recovered from the spot, reached the court without considerable delay. The accused also did not challenge this part of the evidence of the prosecution. 9. Ext.P8 was the mahazar of the lorry and Ext.P9 was the inventory regarding the articles which were produced. It appears that pursuant to the order of the Magistrate, contraband were disposed of. Ext.P10 was the inventory certificate of the Magistrate. Ext.P6 was the forwarding note. Samples were forwarded for chemical analysis. Ext.P11 was the chemical analysis report which shows that samples reached the court without any tampering and that the seal on the sample tallied with the sample seal provided. Ext.P11 evidences that the sample contained 93.98 percent of ethyl alcohol. Hence, the above materials convincingly show that samples drawn from the contraband reached the court without delay and thereafter reached the chemical analysis lab in sealed condition. There is absolutely nothing to show that there was interpolation in the 6 Crl.A.No.1131/2011 meanwhile. Hence, prosecution has established that the sample contained ethyl alcohol. 10. The learned counsel for the accused vehemently contended that the prosecution has thoroughly failed to establish the identity of the accused and to prove that all the 102 cans contained spirit. It was further contended that the prosecution thoroughly failed to establish the source of ethyl alcohol and the other persons who were involved. Hence, the only inference can be that the accused was wrongly implicated. It is true that the only one sample was drawn from can No. 1. It alone was sealed. Evidently, other cans were not sealed and samples were not drawn from them. The explanation offered by PW1 was that samples were drawn from can No.1 only, because all other cans contained liquid with identical smell and odour as that of liquid contained in can No.1. 11. The learned counsel contended that the accused had a case of total denial and that he was not arrested from the spot. I am not inclined to accept this contention for the reason that PWs 1 and 2 have uniformly deposed that the accused was arrested from the spot. Ext.P1 arrest memo bears his signature and 7 Crl.A.No.1131/2011 thumb impression. Further, the label affixed on samples had the signature of the accused also. Version of PW3 also indicates that seizure mahazar was prepared at the spot. 12. It is true that the prosecution had not succeeded in proving the source of contraband articles and the owner of the vehicle and the other persons who were involved in the incident. However, the lorry mahazar indicates that the engine number and the chassis number were chopped off and hence the ownership of the vehicle could not be established . The number shown on the vehicle was also fake. However, that by itself will not absolve the accused from culpability, if other evidence were there to establish his involvement. The learned counsel further contended that there is absolutely no evidence to establish that the accused was in conscious possession of the spirit. According to him, at the time of inspection, even according to the prosecution he did not make any attempt to flee. He cooperated with the investigation, even according to the prosecution. It was further contended that absolutely, no evidence was let in to show that the accused was conscious of the alleged secret chamber and the cans kept in that chamber. There is also no evidence to 8 Crl.A.No.1131/2011 show that he was driving the vehicle. However, none of the above contentions are sustainable. PW1 repeatedly asserted that the accused was driving the vehicle. He has further asserted that he came out from the driver's seat. He had identified the accused in the court as the person who was driving the vehicle. Even though learned counsel for the accused contended that there was nothing to show that the accused was in conscious possession of the spirit, the evidence of PW1 and PW2 indicate that it was the accused who revealed about the secret chamber. Further, the vehicle had fake registration number and that the engine number and chassis number were chopped off. The accused did not carry with him any of the documents relating to himself or that of the vehicle. This clearly establishes that the accused was not a mere driver engaged without knowledge regarding the alleged offence. These facts are sufficient to establish that the accused had conscious possession of the articles. 13. The learned counsel for the accused, relying on the decision reported in **Sasidharan v. State of Kerala [(2012 (2) KLT 392],** contended that PW2 was not an empowered officer 9 Crl.A.No.1131/2011 under the Abkari Act and hence, the act done by him had no sanction of law. It is pertinent to note that the evidence of PW1 indicates that he himself intercepted the vehicle, conducted the search, arrested the accused and prepared the seizure mahazar. PW2 also corroborated this. According to PW5, the investigating officer, the PW2 had only kept safe custody of the articles after taking it over from the detecting officer. Evidently, he has not conducted the main acts of arrest, search, seizure and sampling. Hence, the above decision has no application to the facts of this case. The above facts clearly establish that the prosecution has succeeded in proving the guilt of the accused. The finding of the court below to that extent is liable to be sustained. 14. The learned counsel for the accused alternatively contended that the sentence imposed by the court below is excessive. Relying on the decision reported in **Rajamani v. State of Kerala[2013 (1) KLT 865(SC),** learned counsel contended that he was only a driver and the kingpins involved were not identified. He further contended that he was not the owner of the contraband items and, even according to the prosecution, was only carrying it to some other persons. The 10 Crl.A.No.1131/2011 learned counsel contended that he is entitled for a lenient view and the sentence of five years imposed by the court below with fine of Rs.1,00,000/- is on the higher side. The evidence on record indicate that the above decision of the Hon'ble Supreme Court is squarely applicable to the facts of this case. Apart from driving the vehicle and transporting contraband items for some other persons, there is nothing on record to show he was the owner of the contraband articles. Hence, he is entitled for leniency. Records reveals that he was arrested on 24/3/2009 and was granted bail on 20/5/2009. Thereafter, pursuant to the conviction imposed, he was in jail from the date of the judgment i.e.25/6/2011. He was granted bail by the order of this court dated 19/7/2013 in Crl.M.A No.6035/2011. Evidently, he had undergone substantial period in jail spanning about two years. I feel that this would be sufficient sentence including the default period of fine, having regard to the entire facts and circumstances of the case. In the result, the appeal is allowed in part. While confirming the conviction, sentence is modified to that of the period of detention already undergone. Bail bond executed by 11 Crl.A.No.1131/2011 him stands discharged. **Sd/-** **SUNIL THOMAS Judge** dpk /true copy/ PS to Judge.