Sunil Kumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **TUESDAY ,THE 18TH DAY OF SEPTEMBER 2018 / 27TH BHADRA, 1940** ## **CRL.A.No. 1433 of 2006** **AGAINST THE JUDGMENT IN SC 861/2002 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-II, KOLLAM DATED 23-06-2006** ## **APPELLANT/ACCUSED:** **SUNIL KUMAR, S/O.SREEDHARAN, POIKAVILA VEEDU, KAITHAKUZHI CHERI, ADICHANALLOOR VILLAGE, KOLLAM TALUK.** **BY ADV. SRI.S.HARIKRISHNAN** ## **RESPONDENTS/COMPLAINANT :** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM.**| |**2**|**THE EXCISE INSPECTOR,**| ||**EXCISE RANGE,**| ||**CHATHANNOOR.**| **ADV. SRI. S. SIVANKUTTY- AMICUS CURIAE AND PP. SMT. MAYA M.N. FOR THE STATE.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No. 1433 of 2006** **2** ## **JUDGMENT** The appeal on hand is directed against the judgment of Additional District and Sessions Judge, Adhoc-II, Kollam (for short 'the court below') dated 23.06.2006 in SC No.861/2002. By the aforesaid judgment, the appellant, the sole accused in the above case was found guilty of the offence punishable under Section 8(2) of the Abkari Act (fort short 'the Act') by the court below and convicted and sentenced to undergo rigorous imprisonment for 2 years and pay fine of Rs.1 lakh. In default of payment of fine, the accused was also directed to undergo imprisonment for one year more. The aggrieved accused has approached this Court in the appeal on hand challenging the aforesaid judgment. 2. The learned counsel, who filed the appeal, has not turned up, despite the postings of the Criminal Appeal in the weekly list severally. Accordingly, when the matter was taken up this day for hearing, Sri.S.Sivankutty, the learned counsel was appointed as _amicus curiae_ to conduct the case on behalf of the appellant. Smt.Maya M.N., the learned Public Prosecutor advanced arguments for the prosecution. 3. Before adverting to the rival contentions advanced by the respective counsel and the Public Prosecutor, it is relevant to have a **CRL.A.No. 1433 of 2006** **3** brief discussion about the facts of the prosecution case. The Preventive Officer of Excise Range Office, Chathannoor while on patrol duty alongwith other Excisemen found the accused proceeding against them holding a plastic container in his right hand, at about 6.15 p.m. on 28.04.2000 through Kaithakuzhi-Velichikkala road in Kaithakuzhi Muri in Adichanalloor Village. On watching the Excise Officials proceeding towards him, the accused attempted to escape. He was chased and intercepted. The plastic kit carried by him was examined in the presence of independent witnesses available there. The kit was found to contain 18 packets and 150 ml of arrack was found in each packets. Out of the four packets, two packets were opened. The contents in the packets were smelled and tasted. The liquid found inside was identified as arrack. Two packets were also taken as sample. Those were seized and labelled with labels wherein the signatures of independent witnesses have been procured. The officials also put their signature on the labels. Thereafter, Ext.P1 seizure mahazar was prepared by the preventive officer. The remnant contraband contained in 14 packets were put together in another packet and seized. The seal impression of the Excise office was also put on the packet. The samples were seized and labelled. The personal seal impression of the Excise Officer was also affixed thereon and those were sealed. The accused was arrested. **CRL.A.No. 1433 of 2006** **4** Arrest notice and arrest memo were prepared and arrest notice was served on a relative of the accused as stated by him. The samples, the remnant contraband and the accused were brought before the Excise Range Office, Chathannoor and the accused and the properties were handed over to the Excise Inspector, who was available there. The crime and occurrence report was prepared as Crime No.28/2000 by the Excise Inspector at the Excise Office, Chathannoor. Property list and the requisition were also prepared and those were forwarded alongwith the accused and the properties seized from the spot. The properties and the accused were received by the Judicial First Class Magistrate Court I, Paravur. The samples were forwarded therefrom to the Chemeical Examiner's Laboratory for analysis. The investigation was conducted by an Excise Inspector associated with Excise Range Office, Chathannoor. The statements of witnesses were recorded by him. Concluding the investigation a final report was prepared and laid before the Judicial First Class Magistrate Court-I, Paravur. By committal proceedings, the case was committed to the Court of Sessions, Kollam wherefrom the case was made over to the court below for trial. 4. On process being served, the accused entered appearance. After holding a preliminary hearing, charge was framed against the accused for the offence under Section 8(1) punishable under Section **CRL.A.No. 1433 of 2006** **5** 8(2) of the Act. Charge was read over and explained to the accused and he pleaded not guilty and faced trial. 5. On the side of the prosecution, witnesses were examined as PWs 1 to 6 and documents were marked in evidence as Exts.P1 to P4. The material objects were marked as MO1 and MO2. On closure of the evidence of the prosecution, the accused was questioned under Section 313(1)(b) Cr.P.C. He denied all incriminating circumstances put to him and added that he was a driver at Kaithakuzhy and on a particular day when a woman of the locality engaged in manufacturing illicit arrack was caught by the Excise officials and while she was questioned by the officials, he laughed at them and thereby the officials were disturbed and planting the contraband, he was implicated falsely in the case on hand as accused. 6. Reasons having not been identified to record an order of acquittal, the accused was called upon to enter on his defence. He did not adduce any evidence. Both the learned Public Prosecutor and the counsel representing the accused were heard. Oral as well as documentary evidence on record were perused. The court below on an elaborate appreciation of evidence, found the accused guilty of the offence under Section 8(1) and convicted and sentenced him under **CRL.A.No. 1433 of 2006** **6** Section 8(2) of the Act to undergo the punishment as per the impugned judgment. Aggrieved appellant is now before this Court against the said judgment. 7. The main grounds raised in the appeal memorandum are: i. The judgment under challenge is perverse since the evidence of the prosecution was not appreciated by the court below in its proper perspective. ii. Independent evidence is totally lacking in the case, since independent witnesses examined by the prosecution as PWs 1 and 2 did not support the case. But the court below came to the conclusion of guilt of the accused relying on the evidence of PWs 1 and 2 and thereby has gone wrong. Therefore, the finding is totally illegal. iii. Authority was not there for the Preventive Officer of Excise Range Office, Chathannoor examined as PW3 to detect the offence, seize and draw the sample of the contraband and prepare Ext.P1 seizure mahazar. The court below failed to appreciate the said aspect. iv). The official witnesses relied on by court below are **CRL.A.No. 1433 of 2006** **7** Preventive Officer and Excise Inspector examined as PWs 3 and 6, and their versions did not corroborate. The court below did not advert to the discrepancies in their versions while arriving at a finding of guilt of the accused, vide the impugned judgment. The court below failed to consider also that Pws 3 and 6 are official witnesses and interested ones. v. The court below had based on surmises and conjectures, which ought not to have been done by it. If the evidence on record was appreciated properly, the court below ought to have found that the prosecution had thoroughly failed in establishing its case. 8. The Amicus Curiae, who has been appointed by this Court to contest the case has advanced arguments based on grounds as aforesaid. Smt.Maya M.N., the learned Public Prosecutor has contended that the judgment under challenge is one which is true and correct, in all respects. According to her, evidence have been analysed by the court below in its proper perspective and interference of any nature is totally unwarranted. Bearing the rival arguments in mind, this Court had ventured to look into the evidence on record to find sustainability of those. 9. As revealed from the records, the evidence of the prosecution **CRL.A.No. 1433 of 2006** **8** includes the oral versions of it's witnesses examined as PWs 1 to 6 and documentary evidence of Exts.P1 to P4. Properties seized and produced before the Court were also marked in evidence as MOs 1 and 2. 10. PW1 is none other than the preventive officer attached to Excise Range Office, Chathannoor. According to him, at 6.15 p.m. on 28.04.2000 while he was attending patrol duty alongwith some excisemen associated with the same Excise Range at Kaithakuzhi Muri in Adichanalloor Village, the accused was found proceeding against them carrying a plastic bag. On watching them, the accused attempted to escape. The officials followed and intercepted him. The plastic kit held by him was opened and verified. 18 packets, each with 150 ml of liquid were found in the kit. Two packets from among the 18 packets were opened in the presence of independent witnesses gathered there. The liquor found in the packets were poured into hands, smelled and tasted and identified as arrack. The accused was arrested and the person named by him was intimated of the arrest. Two packets were drawn therefrom as sample. The rest of the packets were placed in another big packet. The properties were sealed then and there and the seal of the Excise Office was affixed thereon. Labels containing signatures of independent witnesses and officials were also affixed on **CRL.A.No. 1433 of 2006** **9** those. Ext.P1 seizure mahazar was prepared by him. Thereafter the accused along with the seizure mahazar and the properties were brought to the Excise Range Office, Chathannoor, and handed over to the Excise Inspector who was available there. 11. PW6 is the Excise Guard, who was in the company of PW3 at the relevant time of patrol duty at Kaithakuzhimuri in Adichanalloor Village. The version given by him finds clear corroboration with that of PW3. Not even a minor discrepancy was noticed in the versions of PW3 and PW6. 12. PWs 1 and 2 were independent witnesses examined before the Court. PWs 1 and 2 are attestors of Ext.P1 mahazar. During chief examination itself, PW1 has denied to have seen the detection, search and seizure. He has also denied to have put signature in Ext.P1, as alleged by the prosecution. During cross examination, PW1 was confronted with service of summons. Court has also noticed difference in signature. Therefore, he was asked to produce the sale deed and the possport, which were admittedly signed by him. Accordingly, cross examination was deferred to another date and he was directed to produce those documents admittedly signed by him. On the scheduled day, those documents were produced and when confronted with, PW1 has clarified stating that he used to sign in either way. It can be **CRL.A.No. 1433 of 2006** **10** deduced from the circumstances that the signature in Ext.P1 and other documents produced by him were put only by him. Therefore, it can be safely concluded that Ext.P1 was signed by PW1 himself from the spot. 13. PW2 is also an independent witness, who according to the prosecution has singed Ext.P1 seizure mahazar from the spot. PW2 though denied to have seen the detection and seizure, admitted to have put signature in Ext.P1 seizure mahazar. It has come out from the oral evidence of PW3 and PW6 that Ext.P1 seizure mahazar was prepared on 28.04.2000 from the spot. When the signatures were admittedly put by PWs 1 and 2 in Ext.P1, it can safely be concluded that the signatues were put by them in Ext.P1 from the spot itself and not from some other place as stated by them. 14. PW4 is none other than the Excise Inspector, who was available at the Excise Range Office, Chathannoor at the relevant time when the accused and the properties seized were produced there. According to PW3, the accused and the properties seized have been handed over to PW4 at the Excise Range Office, Chathannoor. Admittedly, those were received by PW4. According to him, after receiving the accused and the properties, he had prepared the crime and occurrence report as CR No.28/2000, the property list and requisition for forwarding samples to the Chemical Examiner's **CRL.A.No. 1433 of 2006** **11** Laboratory. According to him, the personal seal impression of PW3 was also affixed in the property list and the requisition. The properties along with the accused were produced before the Judicial First Class Magistrate Court I, Peerumedu on 29.04.2000. The accused was remanded to judicial custody and the sample drawn from the contraband seized was forwarded to the Chemical Examiner's laboratory for analysis. According to PW4, Ext.P4 report of Chemical Examination was also obtained from the Laboratory after analysis of the sample. Therefore, with regard to the handing over of the properties, there is corroboration in the versions of PW3 and PW4. The rest of the formalities after seizing the properties and arresting the accused were also clearly spoken by PW4. It is certified in Ext.P4 report of Chemical Examination, that the samples forwarded to the Laboratory and analysed therein contain 27.22% by volume of Ethyl Alcohol. Therefore, from the evidence adduced by the prosecution, it is convincingly established that the liquor seized from the possession of the accused was nothing but illicit arrack. 15. PW5 is the Excise Inspector who had conducted the investigation in the case on hand. According to him, witnesses were examined and their statements were recorded. The final report was prepared and laid by him before the Court. **CRL.A.No. 1433 of 2006** **12** 16. Material discrepancies of any nature are not noticed from the versions of the prosecution witnesses. On the contrary, it is found on a scrutiny of the evidence in it's entirety that witnesses of the prosecution have deposed in a corroborative manner. Therefore, the proseuction was successful in establishing its case beyond reasonable doubt and the court below is perfectly justified in passing the judgment under challenge. Interference is strictly uncalled for. In the result, the appeal fails and is dismissed. The judgment dated 23.06.2006 in SC No.861/2002 on the file of the Additional District and Sessions Judge, (Adhoc-II), Kollam is confirmed. The court below shall take measures to execute the sentence immediately. ## **Sd/-** **MARY JOSEPH** **JUDGE** ttb