Ameer Babu vs State of Kerala

K. Ramakrishnan, J.—The accused in S.C. No. 54/2009 on the file of the Assistant Sessions Court, Payyannur is the revision petitioner. The revision petitioner was charge sheeted by the Excise Inspector, Pappinisseri excise range in Crime No. 28/2007 of Pappinisseri excise range under section 8(1) and (2) of the Abkari Act, but wrongly shown as section 55(a) of the Abkari Act.

The case of the prosecution in nutshell was that on 3.8.2007 at 6 p.m the revision petitioner was found to be in possession of 3 litres of arrack and found transiting the same along the road leading to Malliyottu Kavu at Cheruthazham in violation of the provisions of the Abkari Act and thereby he had committed the offence punishable under Section 55(a) of the Abkari Act. In fact, it ought to have charged under Section 8(1) and (2) of the Abkari Act. After investigation, final report was filed and it was taken on file as C.P. No. 94/2008 on the file of the Judicial First Class Magistrate Court, Payyannur and thereafter it was committed to Sessions Court, Thalassery where it was taken as S.T. No. 54/2009 and thereafter it was made over to Assistant Sessions Court, Payyannur for disposal. When the revision petitioner was produced before that court, after hearing the counsel appearing for the revision petitioner and also Additional Public Prosecutor, charge under Section 55(a) of the Abkai Act was framed and the same was read over and explained to him and he pleaded not guilty. In order to prove the case of the prosecution, Pws 1 to 7 were examined and Exts.P1 to P9 were marked on their side. After closure of the prosecution evidence, the revision petitioner was questioned under section 313 of the Code and he denied all the incriminating circumstances brought against him in the prosecution evidence. He had further stated that he had not committed any offence and he has been falsely implicated in the case. Since the evidence advanced in the case did not warrant an acquittal under Section 232 of the Code, the revision petitioner was called upon to enter on his defence, but no defence evidence was adduced. After considering the evidence on record, the trial court found the revision petitioner guilty under section 55(a) of the Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for three years and also to pay fine of Rs. One lakh, in default to undergo simple imprisonment for 60 days. Set off was allowed for the period of detention already undergone by him under section 428 of the Code. Aggrieved by the same, the revision petitioner filed Crl.A. No. 198/2012 before the Sessions Court, Thalassery through jail authorities and it was made over to Additional Sessions Court, Adhoc-II, Thalassery for disposal and the learned Additional Sessions Judge dismissed the appeal confirming the order of conviction and sentence passed against him. Aggrieved by the same, the present revision has been filed by the revision petitioner/accused before the court below through jail authorities and legal aid counsel was provided for conducting the case.

Heard the legal aid counsel Sri. Lijoy Parakkal Varghese and the learned Public Prosecutor. As State alone is the respondent, this Court felt that the revision can be admitted and disposed of today itself on merit.

The legal aid counsel submitted that except the official witnesses, there is no other witness to prove the incident. So they have not proved the case beyond reasonable doubt and that benefit must be given to the revision petitioner. The concurrent findings of the court below were supported by the Public Prosecutor.

The case of the prosecution as emerged from the prosecution witnesses as follows:

On 3.8.2007 at about 6 p.m PW3, the Circle Inspector Excise Enforcement and Anti Narcotic Special Squad was doing patrol duty, he found the revision petitioner coming with a cannas and on seeing the excise party, he tried to go away from that place and so they intercepted and on examination of the cannas, he found that it contained 3 litres of arrack, which he satisfied on the basis of examination. He took sample and thereafter arrested him and prepared Ext.P2 arrest memo and arrest was intimated to his relatives by giving Ext.P3 intimation and after taking sample and sealing the same, he came to the excise office and he produced the revision petitioner and the articles which he seized as per Ext.P1 mahazer. On the basis of this, a crime was registered by PW7 as Ext.P8 and produced the articles before court along with property list and sent Ext.P9 forwarding note and obtained Ext.P5 Chemical Analysis Report. Invoking the power under section 53(a) of the Abkari Act, Ext.P6 inventory of the articles seized was prepared by Assistant Excise Commissioner which was authenticated by the Magistrate. The Chemical Analysis Report shows that it contained ethyl alcohol. So he filed final report as well.

PW1 is the official witness, who was present at the time of detection. PW3 is the detecting officer. He had deposed the manner in which the detection was made including arrest and seizure of the contraband article from the possession of the revision petitioner. It was corroborated by the evidence of PW1, the Preventive Officer, who accompanied him. PW2 is the independent witness, who did not support the case of the prosecution. He had signed the arrest memo. The revision petitioner had no case that the liquor seized was not arrack and except stating that he has been falsely implicated, no other evidence was adduced on the side of the revision petitioner to prove false implication claimed by him.

It is settled law that even if independent witnesses to the seizure turned hostile, that is not a ground for disbelieving the case of the prosecution and if the evidence adduced on the side of the official witnesses is trustworthy, there is nothing wrong for the court to base conviction on the basis of the evidence of the official witnesses alone. Further Ext.P6 inventory produced will go to show the genuineness of the article produced. So under the circumstances, the courts below were perfectly justified in coming to the conclusion that prosecution has proved beyond reasonable doubt that the accused was found to be in possession of 3 litres of arrack, possession of which is an offence punishable under section 8(1) read with 8(2) of the Abkari Act, though it was wrongly mentioned as section 55(a) by the court below. So the concurrent findings of the court below do not call for interference.

As regards the sentence is concerned, the court below sentenced the revision petitioner to under go rigorous imprisonment for three years and also to pay a fine of Rs. One lakh, in default to undergo simple imprisonment for 60 days. Set off was allowed for the period of detention already undergone by him under section 428 of the Code. Though the legal aid counsel sought intervention of the court to give him the benefit of section 429 of the Code, this Court considering the background of the revision petitioner feels that that it is not a fit case to grant that benefit to the petitioner.

As regards the fine is concerned, only minimum that has been provided under the Act has been imposed. As regards the substantive sentence is concerned, considering the age, this Court feels that some leniency can be shown though the offence alleged is grave in nature. So the substantive sentence is reduced to one and a half years simple imprisonment considering the quantity involved. So the substantive sentence is reduced to simple imprisonment for one and a half years.

With the above modification of the sentence alone, the revision is allowed in part. This Court placed appreciation on recording the enthusiasm shown by the legal aid counsel Sri. Lijoy Parackal Varghese in arguing the case on behalf of the revision petitioner.

Office is directed to communicate this order to the revision petitioner immediately through jail authorities and get the acknowledgment of receipt of the judgment from him through jail authorities.