Venu S/o Rakavan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 4[TH] DAY OF JANUARY 2024 / 14TH POUSHA, 1945** **CRL.A NO. 1000 OF 2007** **AGAINST THE JUDGMENT OF CONVICTION AND SENTENCE IN** **S.C.NO.1220/2001 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE FOR THE TRIAL OF THE ABKARI ACT CASES,NEYYATTINKARA DATED 04.05.2007** **APPELLANT/ACCUSED:** **VENU S/O.RAKHAVAN, KAVUMULATH VEEDU, KARUMAM, THIRUVANANTHAPURAM BY ADVS. SASTHAMANGALAM S. AJITHKUMAR RENJITH B.MARAR PRABHU VIJAYAKUMAR LAKSHMI.N.KAIMAL** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **OTHER PRESENT:** **SMT.SEENA C – PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 04.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.1000 of 2007 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.Appeal No.1000 of 2007** **----------------------------------------------------------Dated this the 4[th] day of January, 2024** ## **J U D G M E N T** The appellant stands convicted and sentenced for an offence punishable under Section 58 of the Abkari Act, 1077. He was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- with a default sentence of rigorous imprisonment for a period of three months. The Additional Sessions Judge for the trial of Abkari Act Cases, Neyyatinkara tried the appellant on a charge under Section 58 of the Abkari Act and convicted and sentenced as per the judgment dated 04.05.2007. The appellant in this appeal filed under Section 374(2) of the Code, challenges correctness and legality of the said judgment. 2. Heard the learned counsel for the appellant and the learned Public Prosecutor. 3. The charge against the appellant is the following: 3 Crl.Appeal No.1000 of 2007 At about 7.30 a.m on 23.04.1998, while PW4, the Excise Inspector, Thiruvananthapuram Excise Range along with his colleagues was on duty found the appellant walking along Karumeth – Kannukalichal road, near Karumam Desom. He was carrying a black jerrycan. On suspicion, the Excise party intercepted and examined the container. It contained 5 liters of arrack. Therefore the contraband was seized and the appellant was arrested. Eventually, after investigation a final report was filed. 4. At the trial, PWs 1 to 6 were examined and Exts.P1 to P7 were marked. MO1 was identified as well. Thereafter, the appellant was examined under Section 313(1)(b) of the Code. He denied all the incriminating circumstances appeared in evidence. He took up a plea that he was falsely implicated in the case after arresting him while he was sleeping in his room. DWs 1 to 3 were examined and got marked Ext.D1 on his side. The court below after considering the aforesaid evidence, found the appellant guilty. 5. The learned counsel appearing for the appellant 4 Crl.Appeal No.1000 of 2007 would submit that the foisting of the case is clear from the evidence let in by the prosecution, especially when none of the independent witnesses to the arrest and seizure supported the prosecution. Further it is submitted that the evidence is insufficient to show that the sample examined in this case is the one drawn from the contraband seized from the possession of the appellant. 6. The learned Public Prosecutor on the other hand would submit that as reflected from the evidence of PW5, the sample was drawn by that witness under the supervision of the Judicial Magistrate and when such a sample was sent for examination from the court itself, no irregularity or doubt could be cast about the report of analysis. It is further submitted that the forwarding note was produced by DW2, who was summoned and examined at the instance of the appellant and that would show the sample was sent to the laboratory properly. Ext.P6 carries endorsement regarding receipt of the samples in the laboratory in a tamper free condition which corroborates other evidence. Accordingly, the 5 Crl.Appeal No.1000 of 2007 learned Public Prosecutor would submit that the evidence is sufficient to establish that the contraband seized from the possession of the appellant was arrack. It is also submitted that the evidence of PWs 3 and 4 is enough to prove the possession of the contraband by the appellant. 7. PW4, an Inspector of Excise is the detecting officer and PW3, a Preventive Officer accompanied PW4. Both of them deposed before the court regarding the arrest of the accused and seizure of the contraband from his possession. Ext.P1 is the Mahazar prepared by PW4 on the arrest of the accused and seizure of the contraband from his possession. It carries the signature of the accused as well as witnesses, who are PWs 1 and 2. The oral evidence tendered by PWs 3 and 4 is in terms of the description in Ext.P1. The said contemporaneous document gives sufficient support to the oral testimonies of PWs 3 and 4. 8. PWs 1 and 2 admitted their signatures in Ext.P1. While PW1 stated that he did not see the arrest of the accused or seizure of the contraband, PW2 who is the son of PW1 stated that on knowing about the arrest of the appellant by 6 Crl.Appeal No.1000 of 2007 the officials, he reached the place of occurrence. He was then asked to sign the Mahazar. He identified the signature in Ext.P1. However, he stated in court that he did not see the seizure of any contraband from the possession of the appellant and thereby he also turned hostile to the prosecution. Although PWs 1 and 2 failed to support the case of the prosecution, their evidence is that they signed Ext.P1 at the place of occurrence. That gives support to the case of the prosecution. ## 9. In T **ahir v. State (Delhi), (1996) 3 SCC 338,** while dealing with a similar question, the Apex Court stated: "Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case.” ## 10. The Apex Court in **Karamjit Singh v. State (Delhi Administration) [AIR 2003 SC 1311]** held that,- “The testimony of police personnel should be treated in the same manner as testimony of any other witness and 7 Crl.Appeal No.1000 of 2007 there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down.” 11. In **Baldev Singh v. State Of Haryana [(2015)** **17 SCC 554]** the Apex Court reiterated that view. As stated, evidence of PWs.3 and 4 stand unimpeached despite detailed cross examination. Ext.P1 renders necessary support to their oral evidence. Even in the absence of any independent evidence to support, evidence of PWs. 3 and 4, in the light of the law laid down by the Apex Court in the aforesaid decisions can be believed in order to find that MO1 which contained 5 litres of contraband was seized from the possession of the appellant at about 7.30 p.m on 23.04.1998. 12. PW5 is the property clerk working in the Judicial Magistrate of the First Class, Neyyantinkara at the relevant time. She deposed before the court that on production of the 8 Crl.Appeal No.1000 of 2007 contraband on 23.04.1998, the day on which the seizure was effected, was verified with reference to the property list and the Mahazar. The seal and the signatures found on the label of MO1 tallied with the property list and the Mahazar. Accordingly it was received. She further deposed that as instructed by the learned Magistrate, she drew samples from the contraband and after sealing the same, it was forwarded to the Chemical Examiners’ Laboratory. 13. Ext.P6 is the report of analysis. The learned counsel for the appellant challenges legality of sending such a sample especially in the absence of production of the forwarding note by the prosecution. At the instance of the appellant, DWs 1 and 2 were examined. They are the officials from the Chemical Examiners’ Laboratory. DW1 stated that it was she who examined the sample and issued Ext.P6 report. It is true that the methodology followed for chemical examination is not stated in the certificate. But she asserted that the sample was duly examined and in her examination, the sample was found contained Ethyl Alcohol. DW2 produced Ext.D1 before the 9 Crl.Appeal No.1000 of 2007 court. She was not cross examined in the light of his statement that he was not competent to state anything regarding the correctness of Ext.D1 and Ext.P6. However, the documents produced by him are quite relevant to the matter in issue. It contains a copy of the forwarding note, as per which sample was sent for chemical examination. From the aforesaid evidence, it is sufficiently proved that the sample examined in this case contained 24.24 % by volume of Ethyl Alcohol. The said fact proved beyond doubt that the contraband seen from the possession of the appellant was arrack. DW1 is the wife of the appellant. She deposed that her husband was arrested on the date of occurrence from their house and not as alleged by the prosecution. DW1 voluntarily deposed before the court a few facts which are totally against the evidence tendered by the prosecution through PWs 3 and 4. When it is found that PWs 3 and 4 are credible and trustworthy, the oral testimony of DW1, who is none other than the wife of the appellant, tendered at the stage of the defence evidence cannot be acted upon to discard evidence of 10 Crl.Appeal No.1000 of 2007 the said prosecution witnesses. 14. In the circumstances, I am of the view that the prosecution succeeded in proving beyond doubt that the appellant possessed 5 litres of arrack as alleged in the charge. The findings of the court below in that regard are devoid of any infirmity. Hence conviction of the appellant is confirmed. 15. The appellant was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/-. The learned counsel for the appellant would submit that the appellant had not involved in any other criminal offence, and he has a wife and children. Now he is 57 years old. The conviction was rendered on 04.05.2007. Considering the long period that lapsed after the incident, and also the other circumstances mentioned above, I am of the view that the appellant deserves a lenient view in the matter of sentencing. Accordingly the sentence imposed on the appellant is modified. The appellant is sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of 11 Crl.Appeal No.1000 of 2007 Rs.1,00,000/- (Rupees One lakh only). In default of payment of fine, the appellant has to undergo a further period of one month. Set off under Section 428 of the Code is allowed. Sd/- **P.G. AJITHKUMAR JUDGE** PV