Subair v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **MONDAY, THE 23RD DAY OF MAY 2016/2ND JYAISHTA, 1938** **CRL.A.No. 504 of 2011 ---------------------** **JUDGMENT DATED 16-03-2011 IN SC 374/2006 OF ADDITIONAL DISTRICT COURT (ADHOC), KALPETTA** **...** **APPELLANT(S)/1ST ACCUSED: -------------------------** **SUBAIR, S/O.MUHAMMAD, KARITHEDATHU VEEDU, GDALAYIKUNNU, KALPETTA VILLAGE, VYTHIRI, WYNAD DISTRICT.** **BY ADVS.SRI.C.S.MANU SRI.S.K.PREMRAJ** **RESPONDENT(S)/COMPLAINANT:** **---------------------------** **STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, BATHERY EXCISE RANGE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR SMT.HYMA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **B. KEMAL PASHA, J.** ................................................................ Crl. Appeal No. 504 of 2011 ............................................................... Dated this the 23[rd] day of May, 2016 ## **J U D G M E N T** The 1[st] accused in Crime No.86/2004 of the Bathery Excise Range faced trial before the Additional Sessions Court (Adhoc)-I, Kalpetta in S.C.No.374/2006. He stands convicted under Section 55(a) of the Abkari Act and sentenced to undergo simple imprisonment for four years and to pay a fine of ₹1,00,000/-, in default, to undergo simple imprisonment for one more year. 2. The prosecution case is that on 16.11.2004 at about 10 p.m., the appellant was found sitting in the cabin of a mini lorry bearing Regn. No. TN 45-M-3947 which was found carrying 570 litres of rectified spirit unauthorizedly brought from State of Karnataka to State of Kerala. PWs.1 and 4 could see the appellant by sitting in the cabin of the lorry, which was stopped on the road side, discussing Crl. Appeal No. 504 of 2011 -: 2 :- something with the 2[nd] accused who was sitting on a motor bike. When PWs.1, 4 and party approached the mini lorry, A2, who was sitting on the motor bike, swiftly got down, ran through the forest and escaped. Even though attempts were made, he could not be nabbed. PWs.1 and 4 took into custody the lorry, along with the appellant. 3. The contraband was seized, and the appellant was placed under arrest through Ext.P1 arrest memo. A quantity of 300 ml. of spirit was drawn from the contraband as sample. Labels were affixed on the cans containing spirit and also on the mini lorry and motor bike. Label was affixed on the sample bottle also. Signatures of PW1, appellant and independent witnesses were affixed on the labels. PW1 took the appellant to the Batheri Range Office and Ext.P3 crime and occurrence report was registered. The appellant and the properties were produced before court on the next day. Forwarding note was filed for getting the sample analysed. Ext.P7 certificate of chemical analysis shows that Crl. Appeal No. 504 of 2011 -: 3 :- the sample contained 86.47% by volume of ethyl alcohol. Consequently, the final report has been filed alleging the offence punishable under Section 55(a) of the Abkari Act. 4. On the side of the prosecution PWs.1 to 5 were examined and Exts.P1 to P7 were marked. The accused was examined under Section 313 Cr.P.C. The accused contended that he was innocent in the case and that he was a contractor by profession. According to him, he was going to the house of one Baby at Thakarappadi, who used to supply sand to him. When he reached at a distance of 100 mtrs. away from the house of Baby, he could see a mini lorry coming. On seeing him, the mini lorry slowed down and the driver asked him to stop the motorbike. The driver wanted to know whether any STD booth was available there. He told the driver that a STD booth was available at Muthanga. Just at that time a jeep came and stopped behind him. On seeing the jeep, the lorry driver ran to the forest. The appellant was apprehended and he was falsely implicated in Crl. Appeal No. 504 of 2011 -: 4 :- the case. 5. With a view to substantiating the contentions taken up by the appellant in his statement under Section 313 Cr.P.C., he got himself examined as DW1. He produced evidence before the court below to show the he was a contractor having licence. At the same time, he has not deposed anything with regard to his other contentions that he was not present in the cabin of the mini lorry or that the person who was driving the mini lorry got down from the lorry and ran to the forest etc. In fact, the evidence tendered by the appellant as DW1 does not serve any purpose at all. 6. PW1 and PW4 have fully supported the prosecution case. According to PW1, he could see the appellant sitting in the cabin of the mini lorry and engaged in a discussion with the 2[nd] accused who was sitting on the motorbike. When they went near, the person sitting on the motorbike got down from the motorbike and ran to the forest. The mini lorry was found loaded with spirit. Sample Crl. Appeal No. 504 of 2011 -: 5 :- was drawn, mahazar was prepared, and the appellant was placed under arrest. He registered a crime and occurrence report through Ext.P3. He filed Ext.P5 forwarding note for getting the sample analysed. According to PW1, the mahazar was prepared in the presence of two forest officials. 7. PW4 Preventive Officer was also present along with PW1 Excise Inspector. PW4 has also fully corroborated the versions of PW1. PW2 was the Section Forester at Thottamoola in Muthanga Forest Range. According to him, he saw the seizure of cans filled with spirit, a mini lorry and a motor bike by the excise officers. He admitted his signatures in Exts.P1 and P2. In cross-examination he deposed that he could see the excise officers standing near the said vehicles. He came to know that one person had ran away and some of the excise officers had chased him. He could see the appellant standing near the mini lorry. 8. PW3 was also a Forester at Muthanga. He also Crl. Appeal No. 504 of 2011 -: 6 :- admitted his signatures in Exts.P1 and P2. According to him, he saw the seizure of cans containing spirit, the mini lorry and the motorcycle. In cross-examination, he deposed that he could not see anybody in the cabin of the lorry when he reached there. According to him, the concerned officers who had chased the accused who ran away had returned, after he along with PW2 had reached the spot. In crossexamination, he deposed that he could hear the appellant contending that the appellant did not know anything about the lorry and that the appellant came by the motorbike. According to PW3, he had not verified the genuineness of the said contentions. 9. PW5 was the Circle Inspector of Excise who had investigated the case. He prepared Ext.P6 scene mahazar. Ext.P7 is the certificate of chemical analysis. He filed the complaint against the appellant. According to him, as no satisfactory evidence could be collected with regard to the source of spirit, he has not conducted any investigation into Crl. Appeal No. 504 of 2011 -: 7 :- that aspect. 10. The learned counsel for the appellant has argued that there is no evidence with regard to the disposal of the balance spirit involved in the case and the said aspect militates against the case of the prosecution. It has been argued that the appellant has been falsely implicated in the case, as the excise officers wanted an accused. It has been further argued that after unnecessarily thrusting the liability on the appellant, who came over there by a motorbike, the excise officers have not cared to investigate into the source from where the spirit came or with regard to the owner of the mini lorry by which spirit was allegedly transported. 11. It is true that there was gross lethargy on the part of the excise officers in investigating this case. They have deliberately stopped the investigation after the seizure of the contraband and the arrest of the present appellant. They could have made enquiries with regard to the owner of the mini lorry by which the contraband was transported. They Crl. Appeal No. 504 of 2011 -: 8 :- have not investigated in that direction. Further, no investigation has been done to trace out the source from where the spirit was brought, and to the place to which the spirit was being transported, or the person to whom the spirit was intended to be handed over. At the same time, those gross negligence from the part of the investigating officers or the detecting officers in the case, will not come to the rescue of the appellant. 12. According to the appellant, the person who was present in the mini lorry ran towards the forest on seeing the excise officers. At the same time, he has not mentioned anything regarding that aspect while he was being examined as PW1. This is a case wherein a huge quantity of spirit was seized. It has come out that the appellant was the registered owner of the motorbike. PW1 has explained that up to a particular point A2 was driving the mini lorry and A1 was riding the motorbike. Thereafter, the appellant got in the cabin and continued to drive the mini lorry after entrusting Crl. Appeal No. 504 of 2011 -: 9 :- the motorbike to A2. There is absolutely nothing to disbelieve those versions. PW2 and PW3, who were independent witnesses, also deposed with regard to the presence of the appellant near the mini lorry. The only item of evidence that could be brought out by the appellant in the cross-examination of PW2 and PW3 was that they could not find the appellant inside the cabin of the lorry. At the same time, it is evident that it was after the chasing of A2 by some of the excise personnel from the spot, that PW2 and PW3 could reach the spot. The other excise personnel, who were present there had detained the lorry as well as the appellant who was the driver. The appellant was not expected to be present in the cabin always. His presence at the spot has been spoken to by PW2 and PW3 also. The case forwarded by the appellant is not believable. 13. The learned counsel for the first appellant has invited this Court's attention to the decision in _**Harijan Pala v. State of Kerala** [2015(4) KLT 160]_ wherein it was held that Crl. Appeal No. 504 of 2011 -: 10 :- the link between the accused and the contraband has to be established by the prosecution and also they will have to establish that the chemical analysis report relates to the representative sample. In this particular case, when the appellant was allegedly found sitting in the cabin of the mini lorry by which spirit was being transported, any further evidence to substantiate the link between the appellant and the contraband is not required. Further, Ext.P7 certificate of chemical analysis clearly shows that the seal on the sample was intact and it tallied with the sample seal provided. Even though the attention of this Court was invited to the decision in _**Sudhepan @ Aniyan v. State of Kerala** [2006(1) KLT SN 72],_ this Court is of the view that the said decision is not applicable to the facts of this case. The guilt of the appellant for the offence punishable under Section 55(a) of the Abkari Act has been proved. There is absolutely nothing to interfere with the conviction passed by the court below. 14. Regarding the sentence, the learned counsel for Crl. Appeal No. 504 of 2011 -: 11 :- the appellant has canvassed an argument that when the other persons, who were behind the crime, have not been apprehended and no investigation was carried on to that direction, the appellant alone could not have been sentenced for this much term of imprisonment. The learned counsel for the appellant has canvassed for the leniency in the question of sentence on the ground that the son of the appellant has died of cancer. From the deliberate laches and callousness on the part of the investigating officers in the matter, this Court is of the view that some leniency can be extended to the appellant in the question of sentence. This Court is of the view that a sentence of simple imprisonment for two years and a fine of ₹1 lakh, in default, simple imprisonment for three more months, will meet the ends of justice in the case. In the result, this Criminal Appeal is partly allowed by maintaining the conviction and modifying the sentence as simple imprisonment for two years and to pay a fine of ₹1 Crl. Appeal No. 504 of 2011 -: 12 :- lakh, in default, to undergo simple imprisonment for three more months. **Sd/- B. KEMAL PASHA, JUDGE.** ul/- // true copy // P.S. to Judge.