Biju vs State of Kerala

Justice V.K. Mohanan

The accused in S.C. No. 314 of 2010 of the court of 3rd Additional Sessions Judge (Ad hoc-I)-Thodupuzha, is the appellant as he is aggrieved by the judgment dated 21.1.2011 of the said court by which he is convicted and sentenced for the offence u/s 55(a) of the Abkari Act. The case of the prosecution is that, on 11.12.2009 at about 4.30 p.m. at Kumily check post, in a lorry bearing Registration No. TN-67-H-5159 driven by the 1st accused/ appellant was found in transporting 3424 ltrs. of spirit from Tamil Nadu to Kerala and thereby committed the offence punishable u/s 55(1) of the Abkari Act. On the basis of the above allegation, crime No. 34 of 2009 was registered in the Excise Range Office, Vandiperiyar, for the said offence. On completing the investigation, report was filed based upon which S.C. No. 314 of 2010 was instituted. In fact, the charge was filed against only A1 as A2 was absconding and A1/the appellant was produced after hearing the prosecution as well as defence and a formal charge was framed against the appellant herein who denied the charge and pleaded not guilty. Consequently, the prosecution adduced its evidence by examining Pws.1 to 8 and producing Exts.P1 to P14 documents. The trial court finally found that the prosecution has succeeded in proving that the accused was found in possession of spirit and the said offence comes within the meaning of section 55(a) of the Abkari Act. Accordingly, the appellant is found guilty u/s 55(a) of the Abkari Act. On such conviction, the appellant is sentenced to undergo rigorous imprisonment for a period of 4 years and also sentenced to pay fine of Rs. 1 lakh and in default of payment of the fine, he is directed to undergo rigorous imprisonment for one year. Set off was allowed u/s 428 of Cr.P.C. It is the above finding, order of conviction and sentence are challenged in this appeal.

I have heard Thomas J.Anakkallunkal learned counsel for the appellant and Sri. P.M. Saneer learned Public Prosecutor for the State.

The prosecution, to buttress its case, mainly depends upon the evidence of PW5, the then Excise Inspector, Kattappana Excise Range office, who was the Detecting officer. When PW5 was examined, he has deposed that as per the orders of the Deputy Excise Commissioner, Kumily Check post, when he was on duty at Kumily check post from 8.12.2009 and on 11.12.2009 at about 2 p.m. himself and party inspected the lorry bearing registration No. TN-67-H-5159 and at that time, he saw the first accused in the driver seat and saw the 2nd accused, who is absconding, inside the lorry. According to him, on further inspection of the lorry, he saw bags of vegetables kept on the top of cans of 35 ltrs. According to PW5, he had also arrested A1 and A2, and Ext.P3 series of arrest memo and arrest notice prepared by him at the spot of seizure. Ext.P5 is the driving licence of accused that seized from the lorry. According to him, after the arrest of the accused, the accused and the contraband article were entrusted with the office of the Excise Range at Vandiperiyar.

Beside PW5, certain other witnesses were also examined by the prosecution. PW1 is the then Village Officer of Kumily village and through him, the prosecution got prepared the scene plan of the place of occurrence and the same is marked as Ext.P1, through PW1. Pws.2 and 3 are two attestors to Ext.P2 seizure mahazar. When they were examined, they have deposed strictly in terms of the prosecution allegation and they have identified the signature seen in Ext.P2 seizure mahazar as well as in Ext.P3 arrest memo. PW4 is the then Excise Inspector of Vandiperiyar Excise Range and when he was examined, he had deposed that he received the accused, two in numbers, and the properties seized under Ext.P2 seizure mahazar and also he had received the case records in this case. According to PW4, he had registered the crime as per Ext.P4 occurrence report. He had also identified Ext.P5 driving licence of the accused. PW4 had also deposed that he had prepared Ext.P6 property list and Ext.P7 forwarding note and he had identified the same. PW4 has further deposed that the lorry was produced before the Deputy Commissioner of Excise and prepared an inventory to show the production of the contraband article before the committal court. Ext.P14 was inventory prepared by the Deputy Commissioner of Excise and Ext.P12 series of photographs of the contraband article were verified by the Magistrate. It was PW6 who undertook the further investigation and when PW6 was examined, he had deposed that he had sent a letter to RTO for the purpose of verification of the vehicle number of the lorry and as per Ext.P8 reply received from RTO, it was informed him that the registration number found on the lorry is the registration number of a motor cycle. Ext.P9 chemical analysis report was also marked through PW6. The report prepared u/s 53(a) of the Abkari Act and the report and photographs of the contraband properties seized were marked as Exts.P10 and P11. PW7 is the Preventive Officer of Vandiperiyar Excise Range. According to him, on 12.12.2009 while he was on G.D. charge at about 6 a.m., he had received 107 cans of 35 ltrs. and 3 samples of spirit and also received the accused from PW5 and subsequently he handed over the accused and the contraband properties to PW4. PW8 was the Excise Preventive Officer Excise Range office, Vandiperiyar and it was PW8 who produced the accused and the contraband article in the court. These are the evidences and materials that were referred to and relied on by the learned Judge of the trial court in support of his findings and to convict the appellant.

Learned counsel for the appellant advanced two fold arguments. The first point raised by the learned counsel for the appellant is that, in the present case, the detection is effected by PW5 who was working at that time as Assistant Excise Inspector and PW5, who seized the contraband article and arrested the accused, was not empowered at that time to exercise the power under sections 40 to 53 of the Abkari Act and therefore the entire seizure and arrest and the detection of the offence are without any authority and are illegal. Therefore, the findings of the court below and the order of conviction are liable to be set aside. The second point raised by the learned counsel for the appellant is that regarding the seizure of the contraband article and the arrest of the accused, the prosecution evidence is contradicting each other and therefore the prosecution case with respect to the seizure of the contraband article and the arrest of the accused cannot be believed. The learned counsel fairly conceded that he has no other arguments against the judgment of the trial court and the prosecution allegation.

On the other hand, learned Public Prosecutor submitted that till 8.5.2009, the Assistant Excise Inspectors of the Excise department in the Kerala State were not given the authority to exercise the powers u/s 40 to 53 of the Abkari Act. But w.e.f. 8.5.2009 they are conferred with such powers and in the present case, the date of occurrence was on 11.12.2009 and therefore PW5 has got ample powers and authority to effect the seizure and arrest of the accused. It is the further submission of the learned counsel that actually the vehicle was inspected at 2 p.m. on 11.12.2009 and the proceedings of the seizure and arrest of the accused was completed by 4.30 p.m. and therefore there is no inconsistency with respect to the time or the seizure and arrest as pointed out by the learned counsel for the appellant. Thus according to the learned Public Prosecutor, no interference is warranted.

I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor and I have perused the judgment of the trial court and scrutinised the evidence and materials on record.

The crux of the prosecution case is that the accused was found in transporting the contraband article namely, spirit at about 2 p.m. on 11.12.2009 at the place of occurrence and thereby committed the ofence u/s 55(a) of the Abkari Act. To prove the incident and the seizure of the contraband article and the vehicle used for transporting the same and the arrest of the accused are proved through PW5, the then Assistant Excise Inspector of Vandiperiyar Excise Range. The evidence of PW5 with respect to the above facts are intact and though he was subjected to cross examination, nothing brought on record to discredit his version. In this case it is also relevant to note that the independent evidence that adduced through Pws.2 and 3 also support the case of PW5. The further steps taken by the prosecution towards the registration of the crime and the production of the contraband article of the accused before the court etc. are not disputed and no argument is advanced against the same. Therefore, on consideration of the argument advanced by the counsel for the appellant, it can be seen that with respect to the facts involved in the case and the allegation raised by the prosecution, the only contention is with respect to the time of the alleged detection of the crime and the seizure and arrest of the accused. As rightly pointed out by the learned Public Prosecutor, all the documents of the prosecution and the facts deposed by the prosecution witnesses would show that for the first time the vehicle was stopped and inspected by PW5 at 2 p.m. on 11.12.2009. The entire procedure adopted by PW5 has been properly recorded in Ext.P2 seizure mahazar and the arrest of the accused is also recorded in the arrest memo. Thus it can be seen that after the detection of the crime at 2 p.m., proceedings were completed by 4.30 p.m. which facts are supported by contemporary documents like Ext.P2 seizure mahazar as well as Ext.P3 arrest memo. The evidence of PW5 and Pws.2 and 3-the independent witnesses had also confirmed the said facts. In the absence of any contra evidence or materials, according to me, the arguments advanced by the learned counsel for the appellant with respect to the time of the detection of the offence as well as the seizure and arrest of the accused, fails.

Another important legal point advanced by the learned counsel for the appellant is that, PW5 was working as Assistant Excise Inspector at the relevant point of time and he was not authorised to invoke section 40 to 53 of the Abkari Act and therefore all the steps taken by PW5 were without any authority. In support of the above submission, learned counsel very much relied upon the decision of this Court reported in Subrahmaniyan Vs. State of Kerala, . In this respect it is relevant to note that as per the government order bearing No. G.O.420/09/TD/Tvm. dated 8.5.2009, the Assistant Excise Inspector of Excise department can invoke section 40 to 53 of the Abkari Act w.e.f. 8.5.2009, which position is now clarified by the decision of this Court in Parathi Sasidharan Vs. State of Kerala (2012 (2) ILR 480). Therefore, the contention advanced by the learned counsel for the appellant against the powers of PW5, being the Assistant Excise Inspector, is also not sustainable and accordingly the same is rejected. As no other contention is advanced against the findings of the court below and against the prosecution allegation and the evidence on record, I am of the view that, the findings of the court below requires no interference. On the other hand, the conviction recorded by the trial court is to be confirmed. Accordingly, the conviction recorded by the trial court against the appellant u/s 55(a) of the Abkari Act is confirmed.

Regarding the sentence, learned counsel for the appellant submitted that the same is exorbitant and illegal and a lenient view may be taken in the matter. It is also the submission of the learned counsel that the mother of appellant is undergoing mental treatment and there are no other persons to attend her. I have carefully considered the submissions of the learned counsel for the appellant. It is true that a huge quantity of spirit is involved in the present case, but the prosecution has no case that he is a habitual offender or he had been involved in similar offence previously. It is also relevant to note that the appellant is a young man aged 28 years and he is unmarried also. It is also beyond dispute that the mother of the appellant is a mental patient. It is relevant to note that from the date of his arrest, i.e., on the date of occurrence on 11.12.2009 onwards, the appellant is under custody. Considering all the facts indicated above and the mitigating circumstances pointed out, I am of the view that the substantial sentence can be reduced from four years to two years and while confirming the sentence of fine, the default sentence can be reduced into six months. Accordingly, in modification of the sentence imposed by the trial court, the appellant is sentenced to undergo rigorous imprisonment for two years and also sentenced to pay fine of Rs. 1 lakh and in default of payment of fine, he is directed to undergo rigorous imprisonment for six months u/s 55(a) of the Abkari Act and he is entitled to get set off u/s 428 of the Cr.P.C.

In the result, this appeal is dismissed confirming the conviction of the appellant u/s 55(a) of the Abkari Act, but subject to modification with respect to the sentence to the extent indicated above.

In the light of the above modification with respect to the sentence, the appellant is entitled to get release from the jail forthwith if he is not required in any other case since he is undergoing imprisonment right from 11.12.2009 and he is granted benefit u/s 428 of Cr.P.C. Therefore, the Registry is directed to forward a gist of this judgment to the Superintendent of Central Prison, Viyyur.