Vellayyan @ Chandran v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933 CRL.A.No. 575 of 2010() ----------------------SC.417/2007 of III ADDL. SESSIONS COURT (ADHOC-1), THODUPUZHA .................... APPELLANTS: APPELLANT. ------------------------ VELLAYYAN @ CHANDRAN, C.NO.2552, CENTRAL PRISON, TRIVANDRUM-12. BY ADV. SRI.GOPAKUMAR.G.(ALUVA) STATE BRIEF RESPONDENT: ------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI K.S. SIVAKUMAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J. ---------------------------------------Crl.A. No. 575 of 2010 ----------------------------------------** Dated the Ist day of September , 2011 ## **JUDGMENT** The appellant is the sole accused in S.C.No.417 of 2007 of the court of the 3[rd] Additional Sessions court (Adhoc-1), Thodupuzha. By judgment dated 15.2.2010 of the trial court , in the above Sessions Case, the appellant is convicted and sentenced to undergo rigorous imperiousness for two years with a fine of Rs.1,00,000/-, in default, to undergo rigorous imprisonment for one month under section 8(1) and (2) of the Abkari Act. It is the above conviction and sentence are challenged in this appeal. 2. The prosecution case is that on 5.7.2007 at about 5.45 p.m., the accused was found keeping 5 litrs of arrack in his house and thereby committed the offence punishable under section 8(1) and (2) of the Abkari Act. On the basis of the above allegation, Crime No. 391 of 2007 of Kattappana police station was registered for the said offence and on completing the investigation, report was filed in the Judicial First Class Magistrate count , Kattappana, based upon which cognizance was taken for Crl.A.575 of 2010 2 the said offence and instituted C.P.No.912007. The learned Magistrate by his proceedings dated 16.8.2007, in the above committal proceedings, committed the case to the Sessions Court wherein the case is received as S.C.No.417/2007 and subsequently made over the same to the trial court for disposal. When the accused was produced before the trial court, on his request, an Advocate was appointed through the District Legal Service Authority, Thodupuzha for defending the case and thus after hearing the prosecution and the defence, a formal charge was framed against the accused for the offence under section 8 (1) and (2) 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 prosecution adduced evidence by examining PWs 1 to 5 and produced Exts.P1 to P12. Besides the above, Ext.X1 and Mos. 1 and 2 were also marked. On questioning the accused under section 313 Cr.P.C., he denied the incriminating circumstances and evidence that brought out during the prosecution evidence. No defence evidence is adduced. Finally the trial court has found that the accused was found in possession of arrack and thereby committed the offence Crl.A.575 of 2010 3 punishable under section 8(1) and (2) of the Abkari Act. On the basis of the above finding, the accused is convicted for the said offence and on such conviction he is sentenced to undergo two years rigorous imprisonment and also sentenced him to pay a fine of Rs.1,00,000/-, in default, to undergo rigorous imprisonment for one month. Set off is allowed under section 428 Cr.P.C. It is the above conviction and sentence challenged in this appeal. 3. As the present appeal is preferred from the jail, and as the appellant is undergoing imprisonment in pursuance of the impugned judgment, as ordered by this court , Advocate Sri G.Gopakumar is appointed as State brief to prosecute the appeal for and on behalf of the appellant. Thus, I have heard Sri G.Gopakumar, the learned counsel appearing for the appellant and Sri K.S.Sivakumar, the learned Public Prosecutor. 4. The specific case of the prosecution is that the accused was found in possession of 5 liters of arrack in his house at about 5.45 p.m on 5.4.2007. In order to substantiate the above allegation, altogether, the prosecution has examined 5 witnesses out of which PWs 1 and 2 turned hostile. PWs 1 and 2 Crl.A.575 of 2010 4 are independent witnesses who are attesters of Ext.P1 search list. Though they turned hostile, they had admitted their signatures in Ext.P1 search list and Exts.P2 and P3 labels that pasted on the material objects. It is PW3, the then S.I of police, Kattappana police station, detected the crime and effected seizure. When PW3 was examined, he had deposed that on getting information regrading the illicit possession of arrack, after sending search memo to the court, himself and party proceeded to the house of the accused and on search he had detected the contraband article kept in MO1 white can. When PW3 was examined, besides Ext.P1, Exts.P2 and P3 , the prosecution has also got marked Exts.P4 and P5 contradictions of 161 statement of PWs 1 and 2 respectively, Ext.P6 search memo and Ext.P7 series, namely, arrest memo, inspection memo and arrest notice, Ext.P8 FIR, Ext.P9 property list, Ext.P10 copy of forwarding note and Ext.P11 chemical analysis report were marked through PW3. PW4 is the former Secretary of Erattayar Grama panchayath through whom Ext.P12 ownership certificate was proved. PW5 was the thondi section clerk of Judicial First Class Magistrate Court, Kattappana, through whom Ext.X1 Crl.A.575 of 2010 5 extract of thondi register kept in court was proved. It was on the basis of the above referred materials and evidence, the trial court found that the prosecution has proved its case against the appellant/accused. 5. Mr.Gopakumar, the learned counsel appearing for the appellant strenuously submitted that the prosecution has miserably failed to establish its case against the appellant beyond reasonable doubt. In support of the above submission, the learned counsel has pointed out that in Ext.P8 FIR, house number of the house from where the contraband article was allegedly seized is shown as VI/158 of Erattayar Panchayat, whereas in the charge the house number of the appellant is shown as EP No.4/06 of Erattayar Pancyhayat. Thus, according to the learned Counsel, the house number is entirely different. But this contradiction is not clarified by the prosecution by adducing proper evidence. Thus, according to the learned counsel, the trial court went wrong in its finding, simply on the basis of the version given by PW3, the detecting officer. Another contention raised by the counsel is to the effect that as the independent witnesses turned hostile, absolutely Crl.A.575 of 2010 6 there is no independent source of evidence to corroborate the evidence of PW3 and, in the absence of any witness among the members of the raiding party, the trial court ought not have convicted the accused simply on the basis of the evidence of PW3, the detecting officer. It is also the vehement submission of the learned counsel that because of the contradiction with respect to the house number, no presumption under section 64 can be drawn in favour of the prosecution and against the appellant. In support of the above submission, the learned counsel placed reliance upon the decision of this Court in **Ravi v. State of Kerala** (2011 (3) KLJ 477). Thus according to the learned Counsel, the appellant is entitled to get a clear acquittal. 6. On the other hand, the learned Public Prosecutor submitted that the address of the accused shown in Ext.P12 ownership certificate and in Ext.P1 search list, Ext.P6 search memo and Ext.P8 FIR, are one and the same and therefore, the contention of the learned counsel for the appellant with respect to the difference in the house number has no relevance. The Public Prosecutor after, inviting my attention to the cross Crl.A.575 of 2010 7 examination of PW3 submitted that the house number shown in the FIR is the old number of the very same house from where the contraband article was seized and the corresponding new number is given in the charge on the basis of Ext.P12 certificate issued by PW4. It is also the submission of the learned Public Prosecutor that the evidence of PW3 is free from any doubt or infirmities and his evidence is fully corroborated by the contemporary documentary evidence such as Ext.P1 search list which contained the signature of PW1 and Ext.P2 and P3 labels and MO1 and MO2 which also contained the signature of PW1. Therefore, according to the learned Public Prosecutor, the trial court is correct in its finding and no interference is warranted. 7. I have carefully considered the arguments advanced by the leaned counsel for the appellant as well as the learned Public Prosecutor. I have also perused the judgments of the trial court and I have also scrutinized the evidence of the prosecution witnesses and other materials and documents. 8. As I indicated earlier, in order to establish the prosecution allegation that the accused was found in possession of 5 litres of arrack in his house, the prosecution has produced Crl.A.575 of 2010 8 the evidence, which I referred to above. In the light of the above evidence and materials and in view of the rival pleadings and arguments advanced by the parties, the question to be considered is whether the trial court is justified in its finding and convicting the accused for the offence under section 8(1) and (2) of the Abkari Act. I have already referred to the evidence of PW3 and other evidence on record. On a close perusal of the evidence of the prosecution and particularly on cross examination of PW3, it can be seen that the defence has no much dispute regarding the search, seizure and arrest of the accused from the house of the accused. The main defence is set up on the basis of the difference in the house number shown in Ext.P8 FIR and in the charge. It is true that in Ext.P8 and in the final charge, the house number from which house the contraband article is seized is given differently. PW4, the former Panchayath Secretary, when examined, had deposed that Ext.P12 ownership certificate was issued by himself and deposed that the house number given in Ext.P12 is EP 4/6 which is in the name of C.Chandran, Paracheruvil house. During the cross examination he had deposed that Ext.P12 was prepared on Crl.A.575 of 2010 9 the basis of the register for the period of assessment years between 1993-94 and 2007-2008. He had deposed that the police requested him to give the house number of Chandran. In answer to the court question PW4 has stated that, as per the register, it is the old number and no revision was effected. Though the defence has got opportunity to cross examine PW4, no serious attempt was made during the cross examination so as to bring out that the house number shown in Ext.P8 FIR and in the final report are with respect to entirely two separate houses. But when PW3 was examined, he deposed that he had recorded the house number which he noticed as per the search and he has got certificate from the Panchayat Secretary. He had further deposed that : “അത� പ�ക�ര� ഞ�ന കണ ന��ര �ഴയ ന��ര ആണ�. ��ത�യ ന��ര ഞ�ന �ര�ശ��ധ�ക�ശ��ള കണ�ര�ന�ല.'' ## During the cross examination it is deposed that : ന�ങള �ര�ശ��ധ�ച വ"ട�നനറ ന��ര P1 ല ശരഖന(ട�ത�യ�ട�ശല ( Q ) (A)ഉണ�.ആവ"ട� ആര �നട ഉടമസതയ�ല ആണ� എന� ക�ണ�ക �ന certificate ആനണ� Secretary യ�ല ന�ന�� വങ�യത� (Q) (A) അനത. 6- വ�ര1� 158- ന��ര വ"ട� ആണ� പ�ത�യ�ശടത� എന� Crl.A.575 of 2010 10 ക�ണ�യ�ക�ന certificate ക�ട�യ�ര�ന�ശവ�. (Q) (A) ഇല. ട� വ"ട�ന�� ��ത�യ ന�ര ക�ണ�ച�ട�ണ� certificate ക�ട�യത�. ന�ങളക�ക�ട�യ certificate ല 6/158 ന�ര വ"ട�നന�റ� �റയ�ന�നണ� (A) . (Q) ഇല.'' From the facts and circumstances involved in this case, it can be seen that after the search and seizure of the contraband article, PW3 had approached PW4 to get the actual number of the house from where the contraband article was seized and accordingly, he obtained Ext.P12. On an evaluation of the evidence of Pws 3 and 4, in the light of the available documentary evidence, it can be seen that the contraband article was seized from the possession of the accused when the same was kept in the house belongs to the accused, especially, when the house address shown in Ext.P8 FIR, Ext.P1 search list, Ext.P6 search memo and Ext.P12 certificate are one and the same. 9. In the light of the particular facts and circumstances involved in the case, according to me, even if there is a variation with respect to the house number, the same has no relevance in the present case since, the prosecution has also proved that the seizure was effected from the possession of the accused and, that too in his presence. The contemporary Crl.A.575 of 2010 11 documents namely, Ext.P1, Ext.P6 search memo and Ext.P7 series, i.e., arrest memo, inspection memo, arrest notice etc, would show that the prosecution has established its case that the accused was found in possession of the contraband article and thus he had committed the offence under section 8(1) and (2) of the Abkari Act for keeping in his possession 5 litres of arrack. In the light of the above mentioned facts and circumstances involved in the case, according to me Section 64 of the Abkari Act is not at all attracted and therefore, the dictum laid down by this court in the decision in **Ravi v. State of Kerala (** 2011 (3)KLJ 477) has no relevance and not attracted. As I indicated earlier, when the prosecution case purely depends upon the evidence and materials which positively proved the factual allegation that the accused was found in possession of the contraband article, there is no necessity to invoke the deeming provision namely Section 64 of the Abkari Act so as to draw the presumption against the accused. 10. In the light of the above facts and circumstances and the discussion, I am of the view that the learned Judge of the trial court is fully justified in his finding and convicting the Crl.A.575 of 2010 12 appellant/accused for the offence under section 8(1) and (2) of the Abkari Act and accordingly, the conviction recorded by the trial court is approved. 11. Though the counsel for the appellant submitted that lenient view may be taken with respect to the sentence, I am of the view that the sentence awarded is only two years imprisonment and fine which is compulsory, there no scope for any interference with the same, especially when the appellant/accused is involved in similar other identical case. Therefore, no interference is warranted with respect to the sentence as well. In the result, there is no merit in the appeal and accordingly the same is dismissed confirming the conviction and sentence imposed on the appellant. kvm/- **V.K.MOHANAN, Judge** Crl.A.575 of 2010 13 kvm/- **V.K.MOHANAN, J. ---------------------------------------Crl.A. No. 575 of 2010 ---------------------------------------JUDGMENT** 1.9.2011