Subhadra v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR WEDNESDAY, THE 22ND DAY OF FEBRUARY 2017/3RD PHALGUNA, 1938 CRL.A.No. 1089 of 2007 ( ) --------------------------SC 1310/2001 of ADDL.S.C.-TRIAL OF ABKARI ACT CASES,NEYYATTINKARA APPELLANT(S)/ACCUSED: ---------------------------------- SUBHADRA, D/O.BHAVANI AMMA, KAVINPURAM ROADARIKATHU VEEDU,, THURUTHUMOOLA MURI, VILAPPIL VILLAGE. BY ADVS.SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT(S)/COMPLAINANT: -------------------------- THE STATE OF KERALA, REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION,, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR, SRI. C. K. PRASAD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl. Appeal No.1089 of 2007 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 22[nd] day of February 2017 ## O R D E R The appellant was convicted by the court below under Section 58 of the Abkari Act. The appellant was sentenced to rigorous imprisonment for three years and a fine of Rs.1,00,000/- and in default to rigorous imprisonment for six months. 2. PW4 was the Sub Inspector of Police, Vilappilsala during the relevant period. During the raid conducted by PW4 and party, the appellant was found in possession of a bottle having 1½ litres of arrack at 5.30 p.m., on 8.5.2000. PW4 was convinced that the content inside the bottle was Crl.A.1089/2007 : 2 : arrack. A woman police constable arrested the appellant as instructed by PW4. Thereafter, a ten litre can containing full of arrack was found concealed in a pit covered with dry leaves near to the place where the appellant was found. PW4 seized, sealed and labelled the contraband in accordance with law. Thereafter, the appellant and the contraband articles were brought to the police station along with the contemporary records. Thereafter, the above crime was registered. 3. PW3 was a police constable, who accompanied PW4 for the raid. He also supported the evidence of PW4 in all material aspects. PW5 was the Deputy Superintendent of Police who conducted the investigation. After completing the investigation, he filed the final report before the court. PW6 was the thondy clerk of the Crl.A.1089/2007 : 3 : Magistrate court concerned. PW6 stated that he received the contraband articles on 9.5.2000 and on the very same day, he entered the same in the Thondy Register. PW6 had drawn the sample from both the contraband articles separately, sealed the same and forwarded the same to the laboratory for analysis in a tamper-proof condition. Ext.P8 is the certificate of chemical analysis which would show that one sample contained 31.28% and the other sample contained 32.85 % by volume of ethyl alcohol. 4. Heard. 5. The learned counsel for the appellant has argued that since the independent witnesses did not support the prosecution case, the appellant is entitled to benefit of doubt. It is true that the independent witnesses, namely, PW1 and PW2 did not support the prosecution case. Crl.A.1089/2007 : 4 : However, their evidence would clearly show that they were having previous acquaintance with the appellant. Merely because PW1 and PW2 did not support the prosecution case, it cannot be said that the evidence of PW3 and PW4 has to be thrown out on that reason alone, particularly when there is no material to indicate that either PW3 or PW4 had any ill-motive to falsely implicate the appellant in a case like this. The appellant attempted to prove through DW1 that the appellant was conducting a C class shop near to the place of occurrence and the said shop was demolished by the police party. However, the public intervened and they helped the appellant to re-construct the shop. DW1 stated that the appellant was arrested at the time when she was doing the business in her shop. There is absolutely no material before the court to indicate that Crl.A.1089/2007 : 5 : the evidence brought in through DW1 is probable. There is not even an iota of evidence before the court to show that the appellant had lodged any complaint in connection with any such incident before the authorities concerned. The evidence of DW1 would show that DW1 is a very close friend of the appellant. Even though DW1 stated that the appellant was arrested while she was doing the business, the further evidence of DW1 would show that he did not witness the arrest of the appellant. The evidence of PW4 regarding the seizure of the contraband and the arrest of the appellant is fully corroborated by the evidence of PW3, who accompanied PW4. The above evidence is corroborated by Ext.P4 mahazar prepared at the spot and also the arrest memo of the appellant available with the records of the court. The contraband articles were also Crl.A.1089/2007 : 6 : produced before the court without any delay. In view of the above reasons, I am convinced that the court below is correct in not accepting the evidence of DW1. For the said reason, the argument in this regard cannot be accepted. 6. The learned counsel for the appellant has further argued that even though the sample was drawn from the contraband on 9.5.2000, the sample was received in the laboratory only on 3.6.2000 and in the said circumstances, the appellant is entitled to benefit of doubt. The evidence of PW6 thondy clerk would show that the sample was received in the court on 9.5.2000. PW6 had drawn two samples from the contraband on 9.5.2000 as per the order of the learned Magistrate. Thereafter, the samples were sealed, labelled and kept in the court in safe custody. Thereafter, on 2.6.2000, he had sent the said samples Crl.A.1089/2007 : 7 : through PC 6698 to the laboratory in a tamper-proof condition as Ext.P3 Note. Ext.P8 per Forwarding certificate of chemical analysis would show that the seals on the bottles were in fact and found tallied with the sample seals provided. The evidence of PW6 would clearly show that the sealed samples were kept in the custody of the court till the same was sent to the laboratory in a tamper-proof condition on 2.6.2000. Therefore, the delay from 9.5.2000 to 2.6.2000 in sending the sample to the laboratory from the court cannot be said to be material at all. In view of the evidence of PW6, I am fully convinced that there was no occasion for tampering with the samples till they were received in the laboratory in this case. In the said circumstances, the argument in this regard cannot be accepted. Crl.A.1089/2007 : 8 : 7. No other argument has been advanced before me by the learned counsel for the appellant to assail the judgment. Having re-appreciated the entire evidence on record, I am fully convinced that the court below correctly appreciated the evidence and rightly found that the prosecution could establish that the appellant was found in possession of the contraband involved in this case at the relevant time. Accordingly, the court below convicted the appellant under Section 58 of the Abkari Act. 8. Since the contraband involved in this case was arrack, the appellant should have been convicted under Section 8(2) of the Abkari Act instead of Section 58 of the Abkari Act, since the offence was committed on 8.5.2000, which was after coming into force of Act 16 of 1997, submitted by the learned counsel for the appellant. The Crl.A.1089/2007 : 9 : Honourable Apex Court in Prakashan A.T. v. The Excise Inspector and another (2014(2) 16 SCC 198) held in paragraph 6 thus:- “It is true that the proper Section, which is attracted in the instant case, is Section 8(1) of the Abkari Act, as amended by Act 10 of 1996, not Section 55(a). But misquoting of the Section or misapplying the provisions has caused no prejudice to the appellant, since the offence has been clearly made out. Offence under Section 55(a) can always be altered to Section 8(1) of Act 10 of 1996, therefore, we find no error in the conviction recorded by the courts below.” 9. In this case, the proper section which is attracted is Section 8(2) of the Abkari Act as amended by Act 16 of 1997. However, misquoting of the section or misapplying Crl.A.1089/2007 **==> picture [42 x 13] intentionally omitted <==** the provisions has caused no prejudice to the appellant, since the offence has been clearly made out in this case. Since the offence under Section 55(a) can always be altered to Section 8(2) of Act 16 of 1997, as held by the Apex Court in Prakashan A.T. (supra), I find no error in the conviction recorded by the court below. 10. As regards the sentence, the learned counsel for the appellant has pleaded for leniency. The learned counsel for the appellant has submitted that the appellant is a lady aged 58 years during the relevant period. Presently, she is aged 75 years. There is no previous conviction against the appellant. Considering the facts and circumstances of the case, including the present age of the appellant and the period elapsed since the incident, I am of the view that the sentence awarded by the court below can be modified and Crl.A.1089/2007 : 11 : reduced to imprisonment till the rising of the court and a fine of Rs.1,00,000/- (Rupees one lakh only) and in default to simple imprisonment for two months, to secure the ends of justice. Accordingly, I order so. In the result, this appeal stands allowed in part as above. Sd / **B.SUDHEENDRA KUMAR, JUDGE** _dl/.23.2..2017_ _// True Copy //_ _PA to Judge_