Vallayadan Sajeevan @ Gafoor v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` FRIDAY, THE 12[TH] DAY OF NOVEMBER 2021 / 21ST KARTHIKA, 1943 CRL.A NO. 506 OF 2014 ``` ``` AGAINST THE JUDGMENT IN CP 42/2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS,KUTHUPARAMBA ``` ``` SC 597/2012 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - ``` ## **`IV, THALASSERY`** ## **`APPELLANT/ACCUSED:`** ``` VALLAYADAN SAJEEVAN @ GAFOOR AGED 32 YEARS S/O. PUNNERI CHANDU, COOLIE, HOUSE NO.11/120A, PATTYAM PANCHAYATH, NEAR VENGALAM KELAPPA SWAMI'S AYYAPPA MADAM, CHERUVANCHERRY AMSOM, KANNAVAM COLONY, THALASSERY TALUK, KANNUR DISTRICT. BY ADVS.SRI.U.P.BALAKRISHNAN SRI.K.R.AVINASH KUNNATH ``` ## **`RESPONDENTS/COMPLAINANT:`** ``` 1THE EXCISE INSPECTOR KUTHUPARAMBA EXCISE RANGE OFFICE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-18. ``` - `2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.` ## **`OTHER PRESENT:`** ``` PP SRI M.P PRASANTH ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 11.11.2021, THE COURT 12.11.2021 DELIVERED THE FOLLOWING: ``` -:2:- Crl.Appeal.No.506 of 2014 ## JUDGMENT Dated this the 12[th] day of November, 2021 This appeal is filed challenging the judgment passed on 07.05.2014 by Additional Sessions Court-IV, Thalassery (for short ‘court below’) in SC No.597 of 2012. The appellant is the sole accused in the case and he was found guilty by the court below under Section 8(1) of the Abkari Act (for short ‘the Act’) and convicted and sentenced under Section 8(2) of the Act to undergo simple imprisonment for two years and pay fine of Rs.1,00,000/- and in default to undergo simple imprisonment for six months. 2. The facts of the prosecution case relevant for disposal of the appeal are summarised hereunder and the parties to the appeal on hand are referred to in accordance with their status before the court below : At about 5.30 p.m. on 09.08.2010, the accused was found in possession of 5 liters of illicit arrack in violation of the provisions of the Act at Kannavam Velumbath in front of Makham. The offence alleged was detected by the Excise Crl.Appeal.No.506 of 2014 -:3:- Inspector, Excise Range Office, Koothuparamba and Crime No.20 of 2010 was registered. Investigation was conducted in the crime and a final report was laid before Judicial First Class Magistrate Court, Koothuparamba. By CP No.42 of 2011 the case was committed to Court of Sessions, Thalassery. The case was taken on file by Court of Sessions, Thalassery and registered as SC No.597 of 2012. Thereafter it was made over to Additional Court of Sessions-IV, Thalassery for trial and disposal. 3. Summons being served, the accused entered appearance. After duly hearing the learned Public Prosecutor and the counsel for the defence, charge was framed by the Court against the accused for an offence punishable under Section 8(2) of the Act. The trial was scheduled and held. 4. On the side of the prosecution PWs 1 to 3 were examined and Exts.P1 to P8 were marked. The accused when examined under Section 313(1)(b) Cr.P.C., took a stand of false implication. According to him, he had a wordy altercation with forest officials while he was there to collect firewood. The learned Public Prosecutor and counsel for the defence were heard under Section 232 Cr.P.C., but, for want of grounds to record an order of Crl.Appeal.No.506 of 2014 -:4:- acquittal, the accused was called upon to adduce his evidence in defence. The accused failed to adduce any evidence. The respective counsel were heard and the trial court found the accused guilty for commission of an offence under Section 8(1) and convicted and sentenced him under Section 8(2) of the Act. Aggrieved by the judgment, the accused is now before this Court in the appeal on hand. 5. Sri. U.P. Balakrishnan, the learned counsel for the appellant has raised three contentions, while canvassing for acquittal of the appellant. According to him, the detecting officer who was examined as PW1 failed to state anything about collection of samples from the contraband seized from the spot. According to him, therefore samples were not drawn from the contraband and in that context it cannot be said that the samples examined by the chemical examiner are the samples of the contraband seized in the case. According to him, the trial is vitiated for the reason and the appellant is entitled for a reversal of the judgment and acquittal. 6. The contention secondly advanced was that a seizure mahazar was marked in evidence by the prosecution as Ext.P4 Crl.Appeal.No.506 of 2014 -:5:- but it was not proved before the trial court. According to him, an Excise Guard namely Kuttikrishnan, who according to the prosecution was responsible for preparation of seizure mahazar was not examined as a witness to prove it. The counsel has also invited the attention of this Court to the deposition of PW2 to contend that the independent witness though shown as a Coolie Worker, he has disclosed himself during cross examination as a Forest Guard. According to him, the appellant during the course of examination was not identified by PW1 or PW2 and therefore, the prosecution failed to prove the identity of the accused. 7. The argument thirdly raised was that apart from the oral evidence tendered by an official witness as PW1, other corroborative evidence is not available to support. PW2 though cited as an independent witness, his stand during cross examination was that he is only an Excise Official. According to the learned counsel, accused cannot be found fault with based on the sole evidence of an official witness. Moreover, PW2 having raised a claim initially that he is a Coolie Worker, later during cross examination he has introduced himself as a forest official and for the said inconsistency itself he is liable to be disbelieved. Crl.Appeal.No.506 of 2014 -:6:- The learned counsel has relied on Murali v. State of Kerala [2003(3) KLT SN 44 (C. No.61)], Sasidharan v. State of Kerala [2007 KHC 3404] and Sukumaran v. State of Kerala [2019 KHC 578] to substantiate his contentions. 8. On the contrary, the learned Public Prosecutor has contended that the arguments advanced by the learned counsel are unsustainable ones. According to him, though PW1 failed to state anything about the sampling of the contraband from the spot while being examined as a witness of the prosecution, the seizure mahazar prepared in the case was marked through him as Ext.P3, without being opposed by the learned defence counsel. According to him, there is clear narration in Ext.P3 about the seizure and the sampling of the contraband and when it is marked in evidence without being opposed by the respondents, the contents of it can be relied on by the court below to reach a conclusion that the sample of the contraband was drawn from the spot itself. 9. The learned Public Prosecutor has also contended that the accused was identified by PW1. According to him, the appellant being the sole accused in the case, there is no need for Crl.Appeal.No.506 of 2014 -:7:- a pointed identification. According to him, since the transaction alleged was detected and the accused was arrested and taken into custody from the spot pursuant to that by PW1, a challenge on identification of the accused is only to fail. According to him, PW1 was not found cross examined on the question of identity of the accused. 10. The last argument was on the exorbitance of the sentence imposed by the trial court. The accused was sentenced to undergo simple imprisonment for a period of two years and pay a fine of Rs.1,00,000/- and in default to undergo simple imprisonment for six months. The punishment having been imposed in a case wherein possession of only 5 liters of illicit arrack stands established, imposition of the sentence is on the higher side and requires modification. 11. As stated earlier, the detecting officer in the case on hand was examined as PW1. According to him, while proceeding for raid, the accused was found from a distance of 30 metres, walking against them holding a plastic Can. The accused on watching them made an attempt to hide the plastic Can carried by him, but was caught by the officials after stopping the jeep Crl.Appeal.No.506 of 2014 -:8:- and stepping down therefrom. PW1 conducted a search on the body of the accused and the contraband was seized. The plastic Can carried by the accused was smelled and the contents of the Can was tasted. The liquor contained in the Can was convinced as illicit arrack. Sample was drawn from the contents in the plastic Can and the same was sent for chemical analysis. The accused was arrested from the spot after preparing arrest memo as well as intimation memo. Seizure Mahazar was also prepared to evidence that all formalities relating to search, seizure and arrest were complied with by the Excise Inspector of Koothuparamba Excise Range and on concluding it, chargesheet was filed against the accused. 12. PW1 though had spoken the entire aspects of the transaction in question, omitted to state anything about the sampling of the contraband. True that PW1 is the only official witness examined by the prosecution to establish its case but on going through the oral evidence recorded from him, there is every reason to believe that he was a witness of utmost loyalty to the prosecution and his evidence at no point of time was shaken. Crl.Appeal.No.506 of 2014 -:9:- 13. True that he has not stated anything about sampling of the contraband but he has spoken about preparation of seizure mahazar at the spot corresponding to the performance of the formalities, following detection of the contraband. The seizure mahazar was also marked in evidence as Ext.P3. The marking of the document was not recorded as objected to by the defence. Therefore, being a contemporaneous document, the contents can be relied on by the prosecution. It has been described elaborately in Ext.P3 seizure mahazar about the procedure adopted by PW1 while drawing samples from the contraband. That being the context, for the failure of PW1 to mention about sampling of contraband during his examination, it cannot be deduced that sample was not drawn from the spot. 14. PW2 is an attestor to the seizure mahazar and it was marked in evidence through him. According to him, the seizure of the contraband from the possession of the accused was witnessed by him. The signature in Ext.P3 was also identified by him as his own. Therefore, to the extent PW2 has spoken, there is corroboration in the version of PW1. Therefore, there is no merit in the contentions raised by the learned counsel that the Crl.Appeal.No.506 of 2014 -:10:- samples have not been drawn from the contraband at the spot and that the sample examined by the Chemical Examiner was not the one drawn from the contraband at the spot. 15. Ext.P7 is the Certificate of Chemical Analysis issued by the Assistant Chemical Analyst, Kozhikode. Ext.P8 is the inventory of the properties seized in crime No.20/2010 prepared at Excise Range Office, Koothuparamba. From Exts.P7 and P8, this Court is convinced that the sample drawn from the contraband from the spot of seizure itself reached the Chemical Examiner’s Laboratory in a safe and untampered condition. The Chemical Examiner has reported in Ext.P7 that, at the time of production of the sample before it, seals on it were intact and also tallied with the sample seal provided. Therefore, there is no reason to doubt on drawal of samples from the contraband seized from the spot and forwarding of the same to the Chemical Examiner’s Laboratory for examination. PW3 is none other than the Excise Inspector, Koothuparamba, who had conducted investigation in the case and filed the Final Report, on concluding it. Crl.Appeal.No.506 of 2014 -:11:- 16. True that in the particulars of whereabouts recorded in the deposition, PW1 was stated as a coolie worker. But, during cross examination, the witness has introduced him as a Forest Official. Though the version of PW3 is confined to investigation and it has nothing to do with the matter of establishing detection, search and seizure, viewed in the backdrop of corroborative versions given by PW1 and PW2, it is improper to state that the prosecution has thoroughly failed to establish its case. The initial entries about the whereabouts of the accused might have been filled by an officer of the Court. During examination, PW2 has admitted his status as an Excise Official but what is relevant for the purpose of his case is whether PW2 was static all throughout his examination without his version being slightly tilted on material aspects. After having a scrutiny of the entire evidence on record, this Court finds that evidence adduced by the prosecution is sufficient and satisfactory to draw a conclusion about the guilt of the accused. Ext.P3 stands proved by an attestor to it. 17. The appellant being the sole accused, the non-holding of the test identification parade will not influence the Crl.Appeal.No.506 of 2014 -:12:- identification of the accused in the Court by PW1. The decision cited by the learned counsel for the appellant in Sasidharan’s case supra has no relevancy in the context for the reason that the sample drawn from the contraband itself reached the Chemical Examiner’s Laboratory. The Chemical Examiner has reported in Ext.P7 that the sample was recovered by him at the Laboratory with the seals intact and tallied with the sample seal provided. The decisions in Sukumaran supra and Murali supra are also not relevant for the issues on hand and therefore are discarded. 18. This Court finds that the arguments advanced as above are untenable ones and without having any basis to sustain reversal of the judgment assailed. In the above circumstances, interference with the judgment on merits is totally unwarranted. 19. It is found that the contraband seized from the possession of the petitioner is illicit arrack of 5 litres. It is found from the materials made available by the appellant that he has already served custody from 09.08.2010 till 24.09.2010 and from 03.05.2011 till 24.05.2011. The appellant’s involvement in any other crime is not reported in the impugned judgment. In the Crl.Appeal.No.506 of 2014 -:13:- above context, this Court is inclined to modify the sentence by reducing the period of imprisonment to one year, which would takes within, the period served by him in custody as an undertrial prisoner. As per the impugned judgment the appellant was also directed to pay fine of Rs.1,00,000/- and to undergo simple imprisonment for six months in default. The default sentence is also modified and reduced to simple imprisonment for four months. Crl.Appeal stands allowed in part with the above modification in the substantive as well as the default sentence. Sd/MARY JOSEPH, JUDGE. ttb