Komala Kumar vs State

R. Basant, J.—This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution u/s 58 of the Kerala Abkari Act.

The crux of the allegations against the petitioner is that on 14/12/96 when he was intercepted by an Excise party consisting of P.Ws.1 and 4, he was found to carry two bottles of illicit arrack. He was intercepted and arrested. Seizure was effected under Ext.P1 seizure mahazar. Ext.P2 occurrence report was prepared. The sample was sent to the Chemical Examiner under Ext.P3 requisition. Ext.P4 report was obtained. Thereupon, P.W.3 filed a charge sheet/final report and cognizance was taken by the learned Magistrate.

The accused denied the offence and thereupon the prosecution examined P.Ws.1 to 4 and proved Exts.P1 to P4. P.Ws.1 and 4 are the officers who detected the offence and effected seizure under Ext.P1. P.W.2 is the independent witness who admitted his signature in Ext.P1 seizure mahazar; but did not subscribe to the contents of Ext.P1. P.W.2 admitted his signature; but did not speak about the incident proper. In the course of cross-examination of the prosecution witnesses and when examined u/s 313 Cr.P.C., the accused did not advance any definite version; but resorted to a defence of total denial. He examined D.W.1.

According to the accused, no arrest had taken place. No seizure had taken place and the case of the prosecution is not true and correct. D.W.1 was examined and P.Ws.1 and 4 were cross-examined in support of the theory that there was and there could be no such detection whatsoever.

The courts below concurrently came to the conclusion that the prosecution has succeeded in establishing all the ingredients of the offence punishable u/s 58 of the Abkari Act. Accordingly, they proceeded to pass the impugned concurrent judgments.

Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned Counsel for the petitioner reiterates the contention that the petitioner had not been arrested at all and that the entire allegations are false. He contends that, at any rate, the sentence imposed is excessive.

We have the oral evidence of P.Ws.1 and 4 - an Assistant Excise Inspector and a Preventive Officer. I have carefully gone through the cross-examination of P.Ws.1 and 4. No semblance of even a suggestion is thrown at P.Ws.1 and 4 by the petitioner to even remotely suggest that they had any ill-will, animosity or malice against the petitioner to justify the theory that such a totally false allegation has been mindlessly raised against him. It is true that P.Ws.1 and 4 are the Excise officials and in that view of the matter, interested in this prosecution initiated by the Excise officials. Such interest which a conscientious officer legitimately has and should have in the successful out come of the prosecution cannot be reckoned as a sufficient circumstance to discard his evidence or even to approach his testimony with any amount of doubt, suspicion or distrust. P.Ws.1 and 4 are public officials. It is their duty to detect offences and bring the offenders to book. Their version is eminently supported by the contents of the contemporaneous seizure mahazar Ext.P1. P.W.2 - an independent witness, admits his signature in Ext.P1; but does not subscribe to the contents. The hostility of P.W.2 notwithstanding. I am satisfied that the oral evidence of the disinterested P.Ws.1 and 4 is eminently supported by the contents of Ext.P1 as also the occurrence report Ext.P2. I find no merit in the contention that the evidence of of P.Ws. 1 and 2 should be discarded altogether.

The fact that the arrest memo is not produced and the fact that there is incongruity between the evidence of P.Ws.1 and 4 as to the place where the release of the accused was recorded are, according to me, not sufficient at all to generate any reasonable doubt or suspicion. Ext.P1 clearly shows that the petitioner whose name is given in detail in the seizure mahazar was arrested at the spot.

The evidence of P.Ws.1 and 4 was thus rightly believed and accepted by the courts below. I find no reason to interfere with the said crucial concurrent conclusion of fact by the courts below. Sitting at this third tier of criminal litigation I am not persuaded to agree that the evidence of P.Ws.1 and 4 needs to be rejected in toto. The evidence of P.Ws.1 and 4, when believed clearly, establishes the offence punishable u/s 58 of the Abkari Act. No contention is raised against that conclusion also. The challenge on the first ground must therefore fail.

The learned Counsel for the petitioner prays that leniency may be shown on the question of sentence. Only two bottles each containing 750 ml. were found in the possession of the petitioner even allegedly. There is nothing to show that the petitioner was having any culpable or contumacious past. Under law, there is no minimum substantive sentence of imprisonment fixed. The maximum fine of Rs. 15,000/- has already been imposed. In these circumstances, it is prayed that leniency may be shown on the question of sentence.

I take note of the totality of circumstances. A period of about 13 years has already elapsed from the date of the alleged offence. I am satisfied, in these circumstances, that leniency can be shown and the substantive sentence of imprisonment can be modified and reduced. This revision petition succeeds only to the above extent.

In the result:

(a) This revision petition is allowed in part.

(b) The impugned verdict of guilty and conviction of the petitioner u/s 58 of the Kerala Abkari Act are upheld.

(c) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo imprisonment till rising of court. The substantive sentence of imprisonment is thus reduced. The sentence of fine and the default sentence are upheld.

(d) The petitioner shall have time till 31/7/09 to appear before the learned Magistrate to suffer the modified sentence hereby imposed. Till then the sentence shall not be executed. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on or before 31/7/09 to suffer the modified sentence hereby imposed.