State of Kerala v. Jayaraj, Nagaraj, Murukan and Anwar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.UBAID** **TUESDAY, THE 04TH DAY OF DECEMBER 2018 / 13TH AGRAHAYANA, 1940** ## **CRL.A.No.1486 of 2004** **JUDGMENT IN SC 99/2001 of ADDL.SESSIONS COURT (ADHOC)-II, ALAPPUZHA DATED 04-08-2004** **-----------------** ## **- APPELLANT/ACCUSED Nos.1 TO 4 :** - **1 JAYARAJ, S/O.RAMASWAMY, MELESHANMUGHAPURAM, 47/4, VANNAR STREET NO.I, THOOTHUKKUDY.** - **2 NAGARAJ, S/O.LINGAPPA NAIKKAN H.NO.30, STREET NO.6, ANNA NAGAR, THOOTHUKKUDY.** - **3 MURUKAN, S/O.AYARANNAN THERUVIL HOUSE, VILLAYARKOVIL, UMARIKOTTA, THOOTHUKKUDY.** - **4 ANWAR, S/O.SHEK AHAMMED PAPPA COMPOUND, MELESHANMUGHAPURAM, STREET NO.I, THOOTHUKKUDY.** **BY ADV. SRI.S.SANTHOSH KUMAR** ## **- RESPONDENT/COMPLAINANT :** **THE STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, CHERTHALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI.SANTHOSH PETER - PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.No.1486/2004 -: 2 :- ## **JUDGMENT** The appellants herein are the accused Nos.1 to 4 in S.C.No.99/2001 of the Court of Session, Alappuzha. They and two others faced trial before the learned Additional Sessions Judge (Adhoc)-II, Alappuzha under Section 55(a) of the Kerala Abkari Act (the Act) on the allegation that at about 2.45 p.m. on 10.8.1998, the accused Nos.1 and 2 were found transporting huge quantity of spirit in the lorry No.TN 69-Z/2989, and the accused Nos.3 and 4 were also found transporting huge quantity of spirit in the lorry No.TN 67/6262 as part of the same transaction. The accused Nos.5 and 6 are respectively the owners of the two vehicles. The accused Nos.1 and 2 are respectively the driver and the cleaner of the lorry No.TN 69-Z/2989, and the accused Nos.3 and 4 are respectively the driver and the cleaner of the lorry No.TN 67/6262. The offence was detected by the Additional Sub Inspector of Police, Cherthala on the basis of secret reliable information, and the detection was made at Cherthala. CRL.A.No.1486/2004 -: 3 :- The Additional Sub Inspector arrested the accused Nos.1 to 4 on the spot, and seized the contraband articles. 110 plastic cans containing spirit were seen concealed under some salt sacks transported in the lorry No.TN 69-Z/2989, and 117 such plastic cans containing spirit were seen concealed under the goods transported in the lorry No.TN 67/6262. The vehicles, and also the huge quantity of salt, were also seized by the Additional Sub Inspector. After two days, after complying with the procedural formalities, the contraband articles, except the vehicles and the huge quantity of spirit were produced in court by the Additional Sub Inspector. The huge quantity of spirit contained in 217 cans, and also the vehicles, were produced before the Excise Commissioner, Alappuzha for necessary action under Section 67B of the Act. On the basis of the arrest and seizure, the Additional Sub Inspector registered the FIR. Investigation was taken over by the Circle Inspector of Police, Cherthala, and his successor submitted final report in court. During investigation, the owners of the two vehicles were CRL.A.No.1486/2004 -: 4 :- arraigned as accused Nos.5 and 6. Pending the proceedings, the 6[th] accused died, and the charge against him thus abated. 2. The accused Nos.1 to 5 appeared before the learned trial Judge, and pleaded not guilty to the charge framed against them under Section 55(a) of the Act. The prosecution examined 12 witnesses, and proved Exts.P1 to P8 documents in the trial court. The MO1 to MO13 properties were also identified during trial. The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C. In defence, they examined one witness as DW1. On an appreciation of the evidence, the trial court found the accused No.5 not guilty of the offence, and accordingly, he was acquitted. But the accused Nos.1 to 4 were found guilty. On conviction, they were sentenced to undergo rigorous imprisonment for two years each, and to pay a fine of Rs.1,00,000/- each. Aggrieved by the judgment of conviction dated 4.8.2004, the accused Nos.1 to 4 have come up in appeal. CRL.A.No.1486/2004 -: 5 :- 3. On hearing both sides, and on a perusal of the materials, I find that there is no satisfactory evidence in this case as against the accused Nos.2 and 4, who are said to be the cleaners respectively of the lorry Nos.TN 69-Z/2989 and TN 67/6262. The evidence shows that the vehicle No.TN 69-Z/2989 was driven by the 1[st] accused, and the other lorry was driven by the 3[rd] accused. The Additional Sub Inspector saw the two vehicles coming; one following the other, and the prosecution evidence reveals that huge quantity of spirit was transported in the two vehicles as part of the same transaction by the accused Nos.1 and 3. Except that the accused Nos.2 and 4 were seen in the lorries, there is nothing to incriminate them, or to prove their involvement in the alleged transportation of spirit by the two drivers. There is nothing to show that the cleaners had any active involvement in the commission of offence by the drivers. There is nothing to show that the accused Nos.2 and 4 were actually the cleaners of the vehicles. Any way, in the absence of any incriminating evidence as against CRL.A.No.1486/2004 -: 6 :- them, or to prove their direct involvement or complicity in the offence committed by the drivers, I feel it just and appropriate to acquit them. 4. But, there is clear evidence as against the accused Nos.1 and 3. PW1 is the Additional Sub Inspector, who detected the offence. He has given clear and satisfactory evidence proving the detection, including the arrest of the accused on the spot, and also the seizure of huge quantity of spirit contained in 217 plastic cans of 35 litres capacity. He has also proved the seizure of the two vehicles. PW2 and PW3 are respectively the Head Constable and the Police Constable, who assisted the Sub Inspector in the process of detection. Investigation was conducted by PW11. PW12 only verified the investigation, and submitted final report. 5. The main witnesses have given evidence that the Additional Sub Inspector had taken sample from all the cans, and the samples were produced in court in a sealed condition. The copy of the forwarding note available in the files shows on perusal that it CRL.A.No.1486/2004 -: 7 :- contains the specimen of the seal affixed by the detecting officer on the samples produced in court. The report of chemical analysis shows that ethyl alcohol was detected on analysis in all the samples forwarded from the court. The percentage detected varies from 94.67 to 95.01. The difference is only marginal. It is true that the quantity of spirit taken from all the cans was taken in three bottles as sample. Had the liquid contained in any of the cans been not spirit, the analysis at the laboratory would not have given such a result as shown in Ext.P8 chemical analysis report. The uniform presence of ethyl alcohol with some marginal difference in percentage, in the six sample bottles, shows that the liquid contained in all the cans was spirit. 6. The evidence given by PW1 to PW3 is that 110 plastic cans of 35 litres capacity containing huge quantity of spirit were found in the lorry No.TN 69Z/2989, and 117 such cans containing spirit were found in the lorry No.TN 67/6262. The total quantity transported in the lorry No.TN 69-Z/2989 is 3850 CRL.A.No.1486/2004 -: 8 :- litres, and the quantity transported in the lorry No. TN 67/6262 is 4095 litres. 7. One contention raised by the defence is that there was delay in producing the properties in court. The detection in this case was made on 10.8.1998, and the properties were produced in court on 14.8.1998. The learned counsel cited a Division Bench decision of this Court in **Ravi** v. **State of Kerala** [2011 (3) KLT 353] and submitted that the detecting officer should have produced the properties in court forthwith. But the decision of this Court is otherwise that it is not necessary that the articles seized under Section 34 of the Act should be produced before the court forthwith. The requirement of law is that the seizure shall be reported to court forthwith, and the properties shall be produced in court without unnecessary delay. When the court considers the huge quantity of contraband articles involved in this case, which require compliance of procedural formalities, the delay of three days in producing the properties cannot be said to be material. CRL.A.No.1486/2004 -: 9 :- 8. Another contention raised by the defence is that the contraband articles were not produced in court. Of course, it is true that only the samples were produced in court, and the remaining quantity of spirit contained in the 217 cans was produced before the Excise Commissioner, Alappuzha. After 2002, the procedure prescribed under Section 53A of the Act will have to be complied with by the detecting officer. The detection in this case was made in 1998. In compliance of the provisions under Section 67B of the Act, the remaining quantity of spirit was produced before the authorised officer by the police, and it was reported to court. When huge quantity is involved, and when it is not practicable to produce the properties in court, it will suffice that the properties are produced before the authorised officer for necessary action, including confiscation under Section 67B of the Act. In cases detected after 2002, or after the insertion of Section 53A of the Act, the authorised officer will have to prepare an inventory of the articles produced before him, the said CRL.A.No.1486/2004 -: 10 :- inventory will have to be certified by a Magistrate, and such inventory can be accepted in evidence even without examining the person, who prepared the inventory. Such procedural formalities were not required on the date of detection in this case, because Section 53A of the Act came into force only on 3.9.2002. It stands well proved that the remaining quantity of spirit contained in 217 plastic cans was produced before the authorised officer as prescribed under the law. Samples were taken from all the plastic cans, and the sealed sample bottles were produced in court. The seal on the samples tallied with the specimen provided in the forwarding note. On analysis at the laboratory, spirit was detected in all the samples. 9. The independent witnesses examined by the prosecution as PW4 to PW6 did not support the prosecution. PW8 is only an attestor to the Ext.P3 scene mahazar, and PW7 and PW9 are the persons, who produced certain documents during investigation. PW10 is the Assistant Sub Inspector, who just seized a CRL.A.No.1486/2004 -: 11 :- document, which does not have much bearing on the prosecution case. There is nothing to show that there was any flaw, or irregularity, or illegality in the investigation conducted by PW11. 10. On an appreciation of the evidence, I find that the prosecution has proved the case as against the accused Nos.1 and 3 beyond reasonable doubt. They are the drivers of the two vehicles. The 1[st] accused is the driver of the lorry No.TN 69-Z/2989, and the 3[rd] accused is the driver of the lorry No.TN 67/6262. The huge quantity of spirit was transported by them in the two lorries. The seizure of the contraband was made from their possession by the Additional Sub Inspector. I find that the accused Nos.1 and 3 are liable for conviction under Section 55(a) of the Act. 11. Now, the question of sentence. The detection was made in August 1998. 20 years have elapsed since the date of detection. The age of the 1[st] accused was 34 years on the date of detection, and that of the 3[rd] accused was 38 years. On a consideration of the various aspects, I find that the sentence imposed by CRL.A.No.1486/2004 -: 12 :- the trial court can be reduced reasonably. The jail sentence imposed by the trial court is rigorous imprisonment for two years each. There cannot be interference in the fine amount because it is the minimum possible under the law. However, the default sentence can be modified and reduced. In the result, this appeal is allowed in part. The appellant Nos.2 and 4 (accused Nos.2 and 4) in S.C. No.99/2001 of the court below are found not guilty of the offence under Section 55(a) of the Act, and they are acquitted of the said offence in appeal under Section 386(b)(i) Cr.P.C. Accordingly, the conviction and sentence against them in S.C.No.99/2001 will stand set aside, and they will stand released from prosecution. But, the conviction against the appellant Nos.1 and 3 (accused Nos.1 and 3) under Section 55(a) of the Act is confirmed. However, the jail sentence imposed by the trial court on the accused Nos.1 and 3 will stand modified and reduced to rigorous imprisonment for one year each. The minimum fine CRL.A.No.1486/2004 -: 13 :- sentence is maintained, subject to modification that the default sentence shall be rigorous imprisonment for three months each. The appellants 1 and 3 will surrender before the trial court within four weeks from this date to serve out the modified sentence, and make payment of the fine amount voluntarily, on failure of which, steps shall be taken by the trial court to enforce the modified sentence against the appellants 1 and 3 (accused Nos.1 and 3), and realise the amount of fine, or enforce the default sentence. **Sd/P.UBAID JUDGE** _//TRUE COPY// P.A. TO JUDGE_ Jvt/5.12.2018