K. Sreedharan vs State of Kerala

V.K. Mohanan, J.—The appellant is the accused in S.C. No. 419/2004 of the Court of Additional Sessions Judge (Ad-hoc-I), Kasaragod, who challenges the judgment dated 22.12.2004 in the above case, by which he is convicted u/s 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of 9 months and to pay a fine of Rs. 1,00,000/-, in default, rigorous imprisonment for a period of 3 months. The prosecution case is that the accused/appellant was found in possession of six bottles, each containing 750ml of Indian Made Foreign Liquor produced in the State of Karnataka at about 10.45 a.m. on 15.06.2003, while he was transporting the same along the public road near the old bus waiting shelter Mulleria, Karadka Panchayath, which was imported from the State of Karnataka to the State of Kerala and thereby the accused has committed the offence punishable u/s 55(a) of the Abkari Act.

On the above allegation, Crime No. 22/2003 was registered by Badiadka Excise Range and on completing the investigation, the report was filed, based on which ultimately S.C. No. 419/2004 was instituted in the Sessions Court, which made over to the court of Additional Sessions Judge (Ad hoc-I), Kasaragod when the accused appeared, after hearing the prosecution and the defence, a formal charge was framed against the accused for the offence punishable u/s 55(a) of the Abkari Act and when the said charge read over and explained to the accused, he denied the same and pleaded not guilty. Consequently, the prosecution adduced their evidence by examining PWs. 1 to 6 and producing Exts. P1 to P9. MOs. 1 to 3 were also identified and marked as material objects. The trial court finally found that the accused has committed the offence punishable u/s 55(a) of the Abkari Act by possessing, importing and transporting liquor in contravention of the provisions of the Abkari Act and accordingly he was convicted for the said offence. On such conviction, the accused/appellant is sentenced to undergo rigorous imprisonment for a period of 9 months and to pay a fine of Rs. 1,00,000/-, in default, he is directed to undergo rigorous imprisonment for a period of 3 months. Set off was allowed. Challenging the above finding and order of conviction and sentence, the accused preferred the above appeal.

Heard Sri. Pushparajan Kodoth, learned counsel for the appellant and Smt. M.T. Sheeba, learned Public Prosecutor.

The prosecution examined PWs. 1 to 6 but PWs. 3, 4 and 6 were turned hostile towards the prosecution and hence the prosecution is constrained to depend upon the evidence of PWs. 1, 2 and 5 to substantiate its allegation. When PW1 examined, he had deposed that he was engaged in patrol duty on 05.06.2003 within Badiadka Excise Range and around 10.15 a.m. on that day, which they were travelling, reached on the public road near the old bus waiting shelter at Mulleria. Then the accused was seen coming from the opposite side carrying a plastic bag in his hands. Seeing the excise party the accused got nervous and attempted to turn back and go. He was interfered and the bag in his hand was inspected and the same contained 6 bottles, each containing 750 ml of Indian Made Foreign Liquor, produced in the State of Karnataka. According to PW1, as the accused has contravened the provisions of the Kerala Abkari Act, he was arrested and the contraband article was seized in the presence of independent witnesses by preparing Ext. P1 mahazar. MO1 is the liquor bottle which opened for sampling. MO2 series, which are five in number, are the unopened bottles containing liquor. MO3 is the plastic bag in which the accused carried the liquor bottles. According to PW1, on completing the proceedings for seizure and arrest of the accused, they returned to the Excise Range Office and handed over the contraband articles, samples and the accused to PW5. PW2 is another Preventive Officer who accompanied PW1 at the time of detection of crime and when PW2 was examined, he had also deposed in tune with the depositions of PW1. PWs. 3 and 4, the independent witnesses, who were attestors to Ext. P1 mahazar, turned hostile. PW5, Excise Inspector of Badiadka Excise Range, on examination deposed before court that on 05.06.2003 PW1 produced the accused, contraband articles and sample before him and on the basis of the same he registered Ext. P2 occurrence report, Ext. P3 property list and forwarded the properties including the samples to the court. The accused was also produced on the same day. PW5, who prepared Ext. P4 forwarding note, requested the court to send the sample for chemical analysis report and consequently received Ext. P5 chemical analysis report. Exts. P6 and P7 are the contradictions of PWs. 3 and 4. PW6 is the Village Assistant of Badiadka Village and he was examined to prove Ext. P9 site plan. He was declared hostile and during his examination, Ext. P8 requisition and Ext. P9 site plan were marked through him. According to PW6, the place of occurrence is on the eastern side of the public road, which is against the prosecution case and therefore on that point PW6 was declared hostile and on cross examination he denied the suggestions that he wrongly marked the scene of seizure in Ext. P9 with the deliberated aim of helping the accused. These are the evidence and materials, relied on by the learned Judge of the trial court in convicting the accused/appellant.

The learned counsel for the appellant vehemently submitted that there is no evidence to show that as to who drawn the sample. After taking me through the depositions of the prosecution witnesses, the learned counsel submitted that there were full of contradictions in the evidence of prosecution witnesses itself and therefore, in the absence of any independent evidence, their evidence cannot be believed. It is also contended by the learned counsel for the appellant that the prosecution has no exact and definite case with respect to the place of occurrence. In order to substantiate the above ground, the learned counsel submitted that as per the evidence of PW1 and Ext. P1 seizure mahazar, the place of occurrence is on the western side of the tar road, whereas, according to PW6, who prepared Ext. P9 site plan, shows the place of occurrence is on the eastern side of the road. Therefore, the learned counsel submitted that the prosecution case cannot be believed as such, but the trial court went wrong in acting upon the evidence of prosecution and convicting the accused.

On the other hand, the learned Public Prosecutor strenuously submitted that the evidence of PWs. 1, 2 and 5 are intact and their evidence is free from any doubt and therefore, the trial court is fully justified in convicting the appellant on the basis of the above evidence and therefore no interference is warranted.

I have carefully considered the submissions made by the learned counsel for the appellant as well as learned Public Prosecutor and I have perused the evidence and materials on record.

Having regard to the facts and circumstances involved in this case and the arguments advanced, the question to be considered is whether any interference is warranted with the judgment of the trial court and whether the same is illegal, incorrect or improper. I have referred to the particulars of the evidence of PWs. 1, 2 and 5. The evidences of PWs. 1 and 2 are positively prove the alleged occurrence, seizure of the contraband article and the arrest of the accused along with the contraband articles from the place of occurrence. The above evidence of PWs. 1 and 2 are fully supported by contemporary documents like Ext. P1 seizure mahazar. Though the learned counsel for the appellant submitted that there is contradiction in the evidence of PWs. 1 and 2, nothing brought to my notice. It is true that PWs. 3 and 4 who were cited and examined to prove the occurrence, turned hostile. But as rightly found by the learned Sessions Judge, PWs. 3 and 4 admitted their signatures in Ext. P1 seizure mahazar. So it is crystal clear that they were deviated from the contents of Ext. P1 mahazar only to help the accused. In the absence of any substantial contradiction or doubt about the evidence of the PWs. 1 and 2, I find no reason to reject their evidence, though PWs. 3 and 4 did not support PWs. 1 and 2. In view of the decision reported in Abdul Rasheed Vs. State of Kerala, according to me, the trial court is fully justified in acting upon the evidence of PWs. 1 and 2 and convicting the appellant.

It is also relevant to note that without any delay the contraband article and the accused were produced before court and the said facts are proved through the evidence of PW5, who is the investigating officer and through him Ext. P2 occurrence report, Ext. P3 property list and Ext. P4 forwarding note were proved. The sample produced before court has been sent for chemical examination as per Ext. P4 forwarding note and obtained Ext. P8 chemical analysis report. So the entire prosecution case is intact.

The contention of the learned counsel for the appellant based upon the discrepancies that brought on record through the evidence of PW6, according to me, will not affect the core of the prosecution case. As a part of the investigation, PW5 requested PW6 as per Ext. P8 requisition to prepare the site plan, for which necessary materials were furnished to PW6. But when PW6 prepared Ext. P9 site plan, the scene of crime shown on the eastern side of the tar road. When PW6 has cross examined, he had no answer for such a mistake. So it can be legitimately presumed that PW6 in Ext. P9 sketch shifted the place of occurrence towards the eastern side of the road so as to help the accused. It goes without saying that site plan and the evidence of person who prepared the site plan, are only corroborative evidence. The substantial evidence of occurrence witnesses have positively proved that the scene of occurrence is on the western side of the tar road. Hence according to me, there will not be any consequences, even if PW6 has shown that the place of occurrence is on the eastern side of the road.

In the light of the above discussions and in view of the evidence and materials referred above, I am of the view that the trial court is fully justified in its finding and convicting the appellant for the offences charged against him and no interference is warranted.

As this court is not inclined to interfere with the findings and the conviction recorded in the trial court against the appellant, the learned counsel for the appellant submitted that a lenient view may be taken in the matter of sentence. According to me, the above submission requires positive consideration.

In the present case, the date of occurrence was on 05.06.2003 and at that time the accused was at the age of 45 and the prosecution has no case that he is an habitual offender. The quantity involved as per the prosecution allegation will come only 4.5 litres of Indian Made Foreign Liquor, though produced in the State of Karnataka. Having regard to the facts and circumstance involved in this case and the total consideration of the entire evidence on materials, I am of the view that the substantial sentence and the default sentence imposed on the appellant requires modification. And the same can be reduced into 6 months and 15 days respectively which will be sufficient to meet the ends of justice. Accordingly, the sentence imposed on the appellant as per the impugned judgment is modified and reduced. In the result, while confirming the conviction of the appellant for the offence u/s 55(a) of Abkari Act, the appellant is sentenced to undergo rigorous imprisonment for 6 months and to pay a fine Rs. 1,00,000/-, in default, he is directed to undergo simple imprisonment for a period of 15 days. The appellant is entitled to get the benefit u/s 428 of the Code of Criminal Procedure.

Thus, subject to the above modifications with respect to the sentence to the extent indicated above, this appeal is dismissed.