Sulochana v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 16TH DAY OF MARCH 2016/26TH PHALGUNA, 1937** ## **CRL.A.NO. 1993 OF 2004 ( )** **---------------------------** **AGAINST THE JUDGMENT IN S.C. NO. 542/2003 OF THE 3RD ADDITIONAL SESSIONS JUDGE, (ADHOC), FAST TRACK COURT-I, THRISSUR DATED 25-11-2004** **---------------------------------** **APPELLANT(S)/ACCUSED : -------------------------------------** **SULOCHANA, W/O SIDHAN, VELLANDRA HOUSE, VELLARAMPADAM, MUPLIYAM.** **BY ADVS. SRI. P.VIJAYA BHANU SMT. P.MAYA** **RESPONDENT(S)/COMPLAINANT :** **----------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY PUBLIC PROSECUTOR SMT. MADHUBEN M.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -------------------------------Crl. Appeal No.1993 of 2004 ---------------------------------Dated this the 16[th] day of March, 2016** ## **J U D G M E N T** This appeal is preferred by the accused against the conviction and sentence in S.C. No.542 of 2003 of the 3[rd] Additional Sessions Judge (Adhoc), Fast Track-I, Thrissur under Sec.58 of the Kerala Abkari Act. The charge against the appellant is that, on 22.12.1999 at 6.15 p.m., she was found in possession of 3 litres of arrack on the way leading to Vellarampadam colony in Mupliyam village by the Preventive Officer, Excise Range Office, Irinjalakkuda. She was arrested and the contraband articles were seized. Reaching at the Excise office, they registered a crime. After completing investigation, Excise Inspector, Irinjalakuda laid charge before the Judicial First Class Magistrate Court, Irinjalakuda. Subsequently, the case was committed to Sessions Court, Thrissur. From there, it was made over to 3[rd] Additional Sessions Judge. 2. During trial, prosecution examined PW1 to Crl. Appeal No.1993 of 2004 2 PW5 and marked Exts.P1 to P8. MO1 to MO3 were marked as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning her. She was also heard under Sec.232 of the Code of Criminal Procedure. She did not adduce any defence evidence. The learned Additional Sessions Judge convicted the accused and sentenced her to undergo rigorous imprisonment for one year and fine of Rs.1,00,000/- (Rupees one lakh only) in default of payment of fine, rigorous imprisonment for three months. Being aggrieved by that, the appellant preferred this appeal. 3. The main contention advanced by the learned counsel appearing for the appellant is that a false case was foisted against the appellant since she was the main agitator against the toddy shop near the Vellarampadam Colony. A forwarding note was not prepared in this case. In the absence of such forwarding note, there is no guarantee that the articles seized from the possession of Crl. Appeal No.1993 of 2004 3 the appellant is arrack. Moreover, the articles were produced before the court on 23.12.1999 (on the next day of seizure) but, it was forwarded to the chemical examination lab through the Excise Guard only on 17.01.2000, ie, after 23 days. Therefore, no credibility can be fasten on the chemical examination report. 4. Learned Public Prosecutor strongly resisted the above contention and contended that no questions were asked by the accused in the trial court about delay. When there was no dispute in the trail court he can not challenged the same in this appeal. He prays to dismiss the appeal. 5. The occurrence was detected by PW1 Preventive Officer, Excise Range office, Irinjalakkuda. His evidence shows that on 22.12.1999, he was conducting patrol duty and proceeding through a by-road leading to Vellarampadom colony, he found the appellant carrying MO3 plastic bag. On seeing the excise party, she tried to withdraw from the byroad. Upon suspicion, PW1 Crl. Appeal No.1993 of 2004 4 intercepted her and inspected MO3 in which, he detected three litres of arrack which was marked as MO1. He took sample of 300 m.l. from MO1. The independent witness present there attested MO1. He also affixed a label. The accused and witnesses put their signature in the label. Reaching at the Excise Range office he entrusted the contraband articles and the accused to the Excise Inspector, who registered Ext.P3 crime and occurrence report. Ext.P4 is the property list. During cross examination, the appellant has not challenged the procedure for taking sample or delay in producing the sample before court. This evidence of PW1 shows that the appellant did not have any challenge with regard to the seizure of the contraband article, procedure of taking sample from it and also the labeling. Therefore, the evidence of PW1 is admissible to prove that he seized MO1 to MO3 from the appellant. 6. Then the question is whether there is any independent corroboration to the alleged seizure. PW2, Crl. Appeal No.1993 of 2004 5 who was examined as an independent witness, admitted his signature in Ext.P1. He categorically stated that he signed in Ext.P1 from the house of the appellant. It is submitted that PW2 involved in two other abkari cases (S.C. No.609 of 2003 and S.C. No.145 of 2003). PW3 also admitted his signature in Ext.P1. Even though, PW2 and PW3 were declared hostile, their admission of signature in Ext.P1 shows that PW1 had bonafidely prepared the mahazar as stated by him at the time and place mentioned therein. PW2 and PW3 turned hostile is not a ground to discard the oral testimony of PW1 with regard to the seizure of the contraband articles. 7. PW4, supported the evidence of PW1, put his signature in Ext.P1. He also stated the same version as given by PW1 with regard to the seizure of MO1 to MO3. His evidence shows that 300 ml was took as sample from MO1. The procedure for taking sample and sealing was also not challenged by PW4 during cross examination. 8. The investigation was conducted by PW5, Crl. Appeal No.1993 of 2004 6 Excise Inspector, Irinjalakuda. His evidence shows that he arrived at the place of occurrence and prepared Ext.P6 mahazar. He also obtained Ext.P7 sketch. The contraband articles were examined in the chemical examiners lab and obtained Ext.P8 certificate. In Ext.P8, 47.28% of ethyl alcohol was detected in the sample. The learned counsel raised a defence contention that the appellant was agitating against the functioning of a toddy shop near the colony. The excise officials, in connivance with the owner of the toddy shop, foisted a false case which was negatived by PW1 and PW4. Even though, such a defence contention was raised, no scrap of paper has been produced in the trial court to show that she was the leader of the social agitation and she filed complaint against the functioning of the toddy shop to the excise officials. In the absence of any of such evidence, the defence contention put forward by the appellant is only to be discarded. 9. According to Sec.8 of the Kerala Abkari Act Crl. Appeal No.1993 of 2004 7 no person shall manufacture, import, export [without permit transit] possess, store, distribute, bottle or sell arrack in any form. This court in **Gopan V. State of Kerala [2007 (3) KLT 443]** held that “mere possession of arrack in any form without any authority would only attract the offence under Sec.8 of the Kerala Abkari Act”. Therefore, the conviction under Sec.58 of the Abkari Act is not proper. In the result, the conviction under Sec.58 of the Kerala Abkari Act is set aside and the appellant is convicted under Sec.8(1) and (2) of the Abkari Act. 10. Considering the nature of offence, the circumstances under which it was committed and also considering the quantity of arrack seized from the possession of the appellant, I am of the view that extreme punishment is not necessary. In the circumstance, the appellant is sentenced to imprisonment for one month and fine of Rs.1,00,000/- (Rupees one lakh only) in default of payment of fine, simple imprisonment for fifteen days relied on the decision reported in **Sasikumar v. State of** Crl. Appeal No.1993 of 2004 8 ## **Kerala [ 2012 (4) KLT 867]** . The period of detention undergone by the appellant if any shall be set off against the terms of imprisonment. The appellant is directed to surrender before the trial court to undergo the modified sentence. Failing which, the 3[rd] Additional Sessions Judge (Fast Track-I) shall issue Non Bailable Warrant forth with. Sd/- **P.D. RAJAN JUDGE** / True Copy / NS/18/03/2016 P.A. To Judge