Sreedharan s/o Unniyasan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **MONDAY, THE 19TH DAY OF DECEMBER 2016/28TH AGRAHAYANA, 1938** **CRL.A.No. 669 of 2009 ( ) --------------------------** **S.C.NO.104 OF 2007 OF THE ADDITIONAL SESSIONS COURT (ADHOC-II), KOZHIKODE** **APPELLANT:** **----------** **SREEDHARAN,S/O UNNIYASAN, POOVAN MALA, CHAMAL DESAM, AMBEDKAR COLONY, KOZHIKODE.** **BY ADV. SRI.C.VIVEK** **RESPONDENT:** **-----------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SR.PUBLIC PROSECUTOR SRI.ALEX M. THOMBRA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DSV/20/12/16** ## B. KEMAL PASHA, J ================= Crl.Appeal No.669 of 2009 ================= Dated this the 19[th] day of December, 2016 ## J U D G M E N T The accused in Sessions Case No.104 of 2007 of the Additional Sessions Court (Adhoc-II) Kozhikode, 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 `1,00,000/-, in default to undergo rigorous imprisonment for six more months, has come up in appeal. 2. The prosecution case is that on 21.01.2003 at 3.45 p.m., the accused was found transporting 5 litres of arrack in a can through the court yard of an Anganvadi situated on the western side of the Ambedkar Colony Road in Chamal Desom, Kidavoor Crl.A.No.669 of 2009 2 Village, in contravention of the provisions of the Abkari Act. 3. The offence was detected by PW1, Preventive Officer of Excise, Excise Circle Office, Kozhikode. He placed the accused under arrest through Exhibit-P2 arrest memo, and seized the contraband through Exhibit-P1 seizure mahazar. A sample of 180 ml of arrack was drawn from the contraband. He entrusted the accused, the properties and the records to the Excise Inspector at the Thamarassery Excise Range Office. 4. PW5, Excise Inspector, Thamarassery, registered Exhibit-P3 crime and occurrence report and produced the properties before court on the same day itself. Forwarding note was furnished, the copy of which is Exhibit-P4. On getting Exhibit-P5 certificate of chemical analysis, which shows that the sample contained 23.23% by volume of ethyl alcohol, PW5 Crl.A.No.669 of 2009 3 filed the Final Report. 5. On the side of the prosecution, PW1 to PW5 were examined, Exhibits-P1 to P6 were marked and MO1 was 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 Senior Public Prosecutor. 7. The learned counsel for the appellant has argued that both the independent witnesses, cited by the prosecution, had turned hostile to the prosecution and did not support the prosecution case. According to the learned counsel for the appellant, in the absence of any independent witnesses, the court below ought not to have entered a conviction. It has also been argued that in the absence of property list, Crl.A.No.669 of 2009 4 there is no evidence to show the date on which the sample was produced before court and therefore, Exhibit-P5 cannot be acted upon. 8. PW2 has clearly narrated the prosecution case. It is true that both the independent witnesses, cited by the prosecution to prove the occurrence, have turned hostile to the prosecution and did not support the prosecution case. At the same time, PW2, Excise Guard, who was also present along with PW1 at the time of seizure, has clearly corroborated the versions of PW1. The appellant has no case that either PW1 or PW2 was in inimical terms with the appellant. Both of them are official witnesses. There is absolutely nothing to suspect the evidence of PW1 and PW2. Therefore, the fact that the independent witnesses have turned hostile to the prosecution is of no consequence at all. 9. Regarding the production of the sample Crl.A.No.669 of 2009 5 before court, as rightly pointed out by the learned counsel for the appellant, the prosecution ought to have proved the property list. At the same time, in this particular case, the prosecution has proved the copy of the forwarding note, which contains the sample seal. Exhibit-P4, copy of the forwarding note, is dated 21.01.2003. The endorsement of the learned Magistrate in Exhibit-P4 clearly shows that the same reached the court on 22.01.2003 itself. The sample was forwarded by the learned Magistrate on 23.01.2003. Therefore, the absence of property list is also of no consequence at all. The date of production is available from Exhibit-P4. 10. The offence was detected at 3.45 p.m. on 21.01.2003. The sample reached before court on 22.01.2003 as is evident from Exhibit-P4. Over and above it, the property list, which finds a place among the records of the court below, clearly shows that in Crl.A.No.669 of 2009 6 fact, the properties were produced before the learned Magistrate at 6.p.m. on 21.01.2003 itself and the learned Magistrate directed the investigating officer to produce the property on the next working day. Consequently, it was produced on 22.01.2003 itself. From all the above, it seems that there is absolutely nothing to interfere with the conviction passed by the court below. 11. Regarding sentence, this Court is of the view that the appellant is entitled to leniency in sentence based on the dictum laid down by the Apex Court in Sasikumar and another v. State of Kerala [2012 (4) KLT 867 (SC)]. Considering the small quantity of the contraband involved in this case, this Court is of the view that a sentence of simple imprisonment for one month and to pay a fine of `1,00,000/-, in default to undergo simple imprisonment for 15 days more will meet the ends of Crl.A.No.669 of 2009 7 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 simple imprisonment for one month and to pay a fine of `1,00,000/- (Rupees One Lakh only), 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 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. // True Copy // DSV/19/12/16 P.A. To Judge