VARKEY v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN THURSDAY, THE 16TH DAY OF JANUARY 2014/26TH POUSHA, 1935 CRL.A.No. 1936 of 2003 ----------------------[AGAINST THE JUDGMENT IN SC 286/2003 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC),FAST TRACK COURT-I, THRISSUR DATED 03-11-2003] APPELLANT(S)/ACCUSED: --------------------VARKEY, S/O.VARUTHUNNI, PARUKKARAN HOUSE, KUTTICHIRA VILLAGE, RANDUKAL DESOM, TRICHUR DISTRICT. BY ADV. SRI.A.C.DEVY RESPONDENT(S)/COMPLAINANT: -------------------------STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.T.Y.LALIZA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.A.No. 1936 of 2003** **---------------------------------------Dated this the 16[th] day of January,2014** ## **J U D G M E N T** The sole accused in S.C.No.286 of 2003 of the court of III Additional Sessions Judge (ADHOC), Fast Track Court-II. Thrissur is the appellant as he is aggrieved by the judgment dated 3.11.2003 in the above case by which he is convicted and sentenced for the offence under Section 58 of the Keala Abkari Act. 2. The prosecution case is that on 27.11.2000 at 12.20 p.m., at the road in front of building No.X/162 of Kodassery Panchayath in Kuttichira Village, the accused was found in possession of 2 litres of illicit arrack in a jerry can having the capacity of 2½ litres and thereby the accused has committed the offences punishable under Sections 8(1) and (2) of the Abkari Act. Accordingly, Crime No.21 of 2000 was registered in the Chalakudy Excise Range and on completing the investigation, a report was laid before the Judicial First Class CRL.A.No. 1936 Of 2003 :-2 -: Magistrate Court, Chalakkudy which was received in C.P.No.8 of 2003 and the learned Magistrate subsequently committed the case to the Sessions Court wherein S.C.No.286 of 2003 is instituted and thereafter, made over the case to the present trial court for disposal. When the accused appeared, after hearing the prosecution as well as the defence, a formal charge was framed against the accused for the offence punishable under Section 58 of the Abkari Act and when the said charge was read over and explained to the accused, he denied the same and pleaded not guilty. Thus, the trial was proceeded further during which the prosecution adduced its evidence by examining Pws.1 to 5 and produced Exts.P1 to P8 documents. MO1 can is identified as material object. No defence evidence is adduced in this case. The trial court finally found that the prosecution has succeeded in proving the possession of 2 litres of illicit arrack by the accused and accordingly, held that the accused has committed the offence punishable under Section 58 of the Abkari Act and he is convicted CRL.A.No. 1936 Of 2003 :-3 -: thereunder. On such conviction, the accused is sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.1 lakh and in default, he is directed to undergo rigorous imprisonment for another three months. Set off is allowed under Section 428 of the Cr.P.C. It is the above finding, the order of conviction and sentence are challenged in this appeal. 3. Heard Sri.A.C.Devy, the learned counsel for the appellant and Smt.Laliza, the learned Public Prosecutor for the State. 4. Though the prosecution altogether examined five witnesses, out of them two are independent witnesses who are examined as Pws.2 and 5, but they turned hostile towards the prosecution. Pws.1 and 3 are the Excise Officials involved in the detection of the crime, the seizure of the contraband article and the arrest of the accused and PW4 is the officer, who conducted the investigation and laid the charge. Thus, when Pws.1 and 3 are examined, they deposed strictly in terms with the prosecution allegation. According to Pws.1 and 3, CRL.A.No. 1936 Of 2003 **==> picture [25 x 9] intentionally omitted <==** while they were conducting patrol duty and when they reached in front of Anganvadi No.123 in Kuttichira Village, the accused was found coming from their opposite direction holding a jerry can in his hand and on seeing the Excise party, the accused got perplexed and tried to escape from the scene of crime, but he was intercepted and PW1 inspected the jerry can, which was possessed by the accused and on such inspection, they found some liquid inside the can, which on smelling and tasting realised as illicit arrack. Accordingly, the accused is arrested with due intimation about his arrest to the wife of the accused and the contraband article and material objects were seized by preparing a mahazar at the spot. PW1 had drawn 180 ml. of sample from the contraband article contained in the jerry can and such sample bottle was sealed with his personal seal and according to Pws.1 and 3, on completing the proceedings and the seizure of the contraband article and draining of sample and arrest of the accused, they returned to the Excise Range Office, wherein the crime and CRL.A.No. 1936 Of 2003 **==> picture [25 x 9] intentionally omitted <==** occurrence report is prepared and also prepared a property list and thereafter, the accused was produced before the court by preparing a remand report and the properties and samples and material objects were also produced before the court on the basis of the property list so prepared and produced. Thus, when PW1 is examined, he had identified Ext.P1 mahazar prepared by him, Ext.P2 charge filed in this case, Ext.P3 arrest notice given to the wife of the accused on the arrest of the accused, Ext.P4 crime and occurrence report, Ext.P5 remand application for producing the accused, Ext.P6 property list whereby the contraband article as well as the material objects and samples were produced, are identified by PW1. PW1 has also identified Ext.P7 chemical analysis report and Ext.P8 label affixed on the jerry can. Both Pws.1 and 3 identified MO1 can. As I indicated earlier, though Pws.2 and 5 are examined as independent witnesses to prove the seizure and arrest of the accused, they turned hostile towards the prosecution. It was PW5 who undertook the investigation and finally CRL.A.No. 1936 Of 2003 :-6 -: laid the charge. 5. Challenging the finding of the court below, the learned counsel submitted that regarding the exact place of occurrence, the seizure of the contraband article and the arrest of the accused, the prosecution evidence is silent. Therefore, the trial court is not justified in convicting the appellant. It is also contended that in the present case, the prosecution has not prepared any forwarding note and filed the same before the court to send the samples for chemical analysis report and therefore, there is no link evidence to show that the sample which was subjected to chemical analysis is the sample drawn from the contraband article seized from the possession of the accused. Thus, the learned counsel submitted that the appellant/accused is entitled to get an acquittal after setting aside the judgment of the trial court. 6. Per contra, the learned Public Prosecutor submitted that in the present case, the prosecution has conducted a fair and proper CRL.A.No. 1936 Of 2003 **==> picture [25 x 9] intentionally omitted <==** investigation and the prosecution has also produced all contemporaneous documents and such evidence are sufficient to establish the guilt of the accused and the trial court accepted the same and found the accused guilty. According to the learned Public Prosecutor, even though the independent witnesses turned hostile, the evidence of Pws.1 and 2, who involved in the detection of the crime are free of doubt and infirmities and contradiction and therefore, the trial court is justified in accepting the above evidence of official witnesses which forms the basis for conviction of the appellant. Thus, according to the learned Public Prosecutor, no interference is warranted. 7. I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor and I have perused the evidence and materials on record. 8. Having regard to the arguments advanced, particularly in view of the evidence and materials on record, the question to be CRL.A.No. 1936 Of 2003 :-8 -: considered is whether the trial court is justified in its finding and convicting the appellant for the offence under Section 58 of the Abkari Act. At the outset, it is to be noted that the investigating agency after conducting the investigation and when they laid the charge, the charge was for the offence punishable under Section 8(1) and (2) of the Abkari Act, which is borne out from the judgment itself and Ext.P2 charge. However, the trial court framed a charge against the appellant for the offence punishable under Section 58 and finally found that the accused is guilty under Section 58 of the Abkari Act. 9. A learned Judge of this Court in the decision reported in **Jose** v. **State of Kerala** (2007(2) KLT 202) has held that the prohibition under Section 8(1) of the above Act came into force with effect from 3.6.1997 after which date no person is entitled to manufacture, import, export, transport, without permit transit, possess, store, distribute bottle or sell arrack in any form. It was further held that there could not be any dispute that arrack consists of alcohol namely, Ethyl CRL.A.No. 1936 Of 2003 :-9 -: Alcohol. It was further held that arrack is liquor the possession of which incidental to transportation will squarely attract S.55(a) of the Abkari Act. It is concluded by the learned Judge as follows:- “ _18. As mentioned earlier, the conviction of the appellant in this case could have been recorded under any of the said penal provisions, namely S.8_ ” ....... _(2),55(a) or 58 of the Abkari Act_ Therefore, in the light of the above decision, according to me, even the report of the investigating agency is for the offences punishable under Sections 8(1) and (2), the conviction recorded by the trial court against the appellant for the offence under Section 58 can be approved if the evidence and materials on record are sufficient to justify such finding and conviction. 10. The learned counsel for the appellant advanced two grounds while assailing the impugned judgment and out of which, the first contention is that the exact place and time of occurrence are not mentioned anywhere. The above submission of the learned counsel is CRL.A.No. 1936 Of 2003 :-10 -: against Ext.P1 mahazar itself. The title of Ext.P1 mahazar itself shows the exact time and place at which the crime was detected. The time mentioned therein is 12.30 during the day time and the place of occurrence is mentioned as 'മ�ക�നപ�ര� ത�ല�ക�ല ക�റ�ച�റ വ�ലല�ജ�ല രണ� കക ല�ശത�� രണ� കക ജ�ഗ���ല ��ന�� വ രന ച�റക� പ�ക�ന ലറ�ഡ�ല ലക�ടല%ര� പഞ�യത�� X/162-ം� �മര കകട�ടത�ല പപവരത�ക�ന സ�മ�ഹ6ല7മവക�പ�ക9 123-)ം� �മര അ�ഗനവ�ട�യ�കട മ�നവശ� ലറ�ഡര�ക�ല .......' PW1 during his chief examination itself reiterated the place of occurrence in terms of the writing in Ext.P1 mahazar. So, the above ground raised by the counsel fails. 11. Another contention taken by the counsel in this case is that no forwarding note is prepared and therefore, no link evidence is to prove the case against the appellant beyond reasonable doubt. The above contention is also not sustainable. When PW1 was examined, he had deposed during his chief examination itself that പപത�ലയയ�� CRL.A.No. 1936 Of 2003 :-11 -: കത�ണ�കളA� ഞ�ന ലകസ 25/2000 ആയ� രജ�സരകചയത� . അന� തകന ഞ�ന records-ഉO പപത�യ�മ�യ� ച�ലക�ട� JFCM മ�മ�കക ഹ�ജര�യ� . ര�സ പര�ലശ�ധ�ക�ള request എട�ത�....” The above claim of PW1 is further corroborated by another contemporary document viz., Ext.P5 remand application. It is stated in Ext.P5 “ _the mahazar in original, arrest memo, TR1, chemical requisition in duplicate, statement of body search, thondy with thondy list and sample bottle are herewith submitted._ ” The above contemporaneous document, which is seen accepted by the learned Magistrate on 27.11.2000 renders credibility to the claim of PW1 that he had prepared request for sending the sample for chemical analysis and filed before the court. However, it is a fact that neither such request for chemical analysis nor forwarding note is marked during the trial of the case. According to me, the failure on the part of the prosecution in marking the above documents is not fatal to the prosecution in view of the above evidence of PW1 which is supported CRL.A.No. 1936 Of 2003 **==> picture [31 x 9] intentionally omitted <==** by the above mentioned document. More over, it is relevant to note that though PW1 claimed during his chief examination about the preparation of the request for chemical analysis, PW1 was not crossexamined on this aspect and his claim is not challenged effectively by the defence. It is also relevant to note that the date of occurrence was on 27.11.2000 and on the same date itself, the sample along with other material objects have been produced by the prosecution and the learned Magistrate by his endorsement dated 27.11.2000 seen accepted the same in the court on 27.11.2000 itself. It is further relevant to note that as per Ext.P7 chemical analysis report, the learned Magistrate, by his letter No.PI 443/00 dated 30.11.2000, forwarded the sample to the Chemical Examiner, who in turn received the sample on 1.12.2000. Further, in Ext.P7 chemical analysis report, the chemical examiner has certified that they received one sealed bottle containing 180 ml. clear and colourless liquid and the seal on the bottle was intact and found tallied with the sample seal provided. CRL.A.No. 1936 Of 2003 **==> picture [31 x 9] intentionally omitted <==** In the present case, as per the evidence of PW1, the detecting officer and as per the mahazar, which is a contemporary document prepared by PW1, the quantity of the sample drawn from the contraband article seized by PW1 is 180 ml., which is produced by PW1 before the court on 27.11.2000 itself and the said sample was forwarded by the learned Magistrate to the Chemical Examiner on 30.11.2000. So, the above evidence and the materials established in clear cut terms, without any room for manipulation or tampering the samples and without any lapse of time, that the sample reached in the hands of the chemical examiner safely. Therefore, according to me, even though no document as forwarding note or requisition for chemical analysis of the sample is marked, and especially when the said fact is not challenged during the trial of the case, it cannot be said that the prosecution has failed to prove its case beyond reasonable doubt. On the other hand, the above evidence and materials further reiterated that the sample drawn from the contraband article seized from the possession of the accused CRL.A.No. 1936 Of 2003 :-14 -: reached at the hands of the chemical examiner in a fool proof condition and because of the absence of forwarding note or chemical requisition in the present case, the accused is in no way prejudiced. 12. In the light of the discussion and in view of the evidence and materials referred to above, I find no reason to interfere with the findings of the court below and accordingly, the conviction recorded by the trial court against the appellant is confirmed. 13. As this Court is not inclined to interfere with the conviction, the learned counsel for the appellant submitted that a lenient view may be taken in the matter of sentence considering the age of the accused, who is now at the age of 68 years. According to me, the above submission requires positive consideration. On hearing the question of sentence, it is submitted by the accused before the court below that he is the father of three female children and he has to look after his mother and the family and he is the sole bread winner of his family. The prosecution has no case that the appellant is a habitual offender CRL.A.No. 1936 Of 2003 **==> picture [31 x 9] intentionally omitted <==** and the quantity involved in this case, according to the prosecution, is only at about 1.5 litres of arrack and more over, it is relevant to note that the appellant is a coolie worker. In the light of the above mitigating circumstances, according to me, the appellant deserves leniency in the matter of sentence and therefore, while confirming the sentence of fine, the substantial sentence and the default sentence can be reduced. Accordingly, in modification of the sentence of one year rigorous imprisonment, the appellant is sentenced to undergo rigorous imprisonment for three months and to pay fine of Rupees One lakh and in default, he is directed to undergo rigorous imprisonment for one month and set off is allowed under Section 428 of the Cr.P.C. In the result, this appeal is dismissed confirming the conviction of the appellant for the offence under Section 58 of the Abkari Act, but subject to modification with respect to the sentence to the extent indicated above. Accordingly, the bail bond, if any, executed by the appellant shall stand cancelled and the appellant is CRL.A.No. 1936 Of 2003 **==> picture [31 x 9] intentionally omitted <==** directed to surrender before the trial court on **17.2.2014** to receive the modified sentence. In case of failure on the part of the appellant to surrender before the court below as directed above, the trial court is free to issue coercive steps to secure the presence of the accused and to execute the modified sentence. **V.K.MOHANAN** , Judge MBS/ ## CRL.A.No. 1936 Of 2003 :-17 -: CRL.A.No. 1936 Of 2003 :-18 -: ## **V.K.MOHANAN, J.** CRL.A.No. 226 OF 2003 J U D G M E N T Dated:29.10.2013 ## CRL.A.No. 1936 Of 2003 :-19 -: