Kumaran vs State of Kerala

P.S. Gopinathan, J.—The appellant is the accused in S.C.No.292/2003 on the file of the Additional Sessions Judge (Adhoc-I), Kozhikode. He was prosecuted by PW5, the Sub Inspector of Police, Kuttiady Police Station, charging offence u/s 8(2) of the Abkari Act with an allegation that while his predecessor, who was examined as PW1 moving on petrol duty on 4/3/2001, the appellant was found near Nettur Siva Temple at 5.30 P.M. He was carrying a jerry can, which was marked as MO1 containing 10 ltrs of arrack. PW1 arrested the appellant. Seized the contraband. 375ml was taken as sample. Exhibits P1 and P2 are the arrest memo and inspection memo and Exhibit P3 is seizure mahazar. Returning to the Police Station, a case as Crime No.61/2001 was registered for offence u/s 8(2) of the Abkari Act for which Exhibit P4 First Information Report was prepared. The investigation was handed over to PW4, then Sub Inspector of Police, Thottilpalam, who proceeded with the investigation. By the time PW1 was succeeded by PW5. PW5 completed the investigation and submitted the charge sheet before the Judicial Magistrate of the First Class, Nadapuram. The learned Magistrate on finding that the offence alleged is triable by a court of Session, the case was committed to the court of Session, Kozhikode. From there it was made over to the Additional Sessions Judge. Responding to the process issued by the Additional Sessions Judge, the appellant entered appearance. After hearing either side, a charge for offence u/s 55(a) of the Abkari Act was framed. It was read over and explained. The appellant pleaded not guilty. Therefore, he was sent for trial. On the side of the prosecution, PWs 1 to 5 were examined. Exhibits P1 to P8 and MO1 were marked. After closing the evidence for the prosecution, the appellant was questioned u/s 313 of the Code of Criminal Procedure. The appellant denied the incriminating evidence and further stated that he was a coolie and on the alleged date of occurrence, he was engaged in thatching the house of one Ashokan, who was examined as DW1 and that he was falsely implicated and that he had no sort of connection with MO1 or the liquor thereon. In support of the plea, DW1 was examined.

The learned Sessions Judge on appraisal of the evidence arrived at a conclusion of guilty. Consequently, the appellant was convicted and sentenced to rigorous imprisonment for three years and a fine of Rs.1,00,000/- with a default sentence of simple imprisonment for six months. Assailing the above conviction and sentence this appeal is preferred.

I have heard Adv.Sri. K.V. Anilkumar, the learned counsel appearing for the appellant and Smt. A. Lowsy, the learned Government Pleader. Perused the judgment impugned and the evidence on record.

PW1 had given evidence in support of the prosecution case. He would depose that on 4/3/2001, at 5.30 P.M., while he was moving on petrol duty along with PW2, a Police Constable and party, the appellant was found walking with MO1 jerry can containing 10 ltrs of liquid. The appellant was arrested. The nature of the liquid was tested by smell and taste and convinced that it was nothing but illicit arrack. Therefore, it was seized, for which Exhibit P3 seizure mahazar was prepared. 375ml was taken in a sample bottle. Sample bottle and MO1 were sealed then and there. Labels containing the signature of the accused and PW1 were affixed. Returning to the police station, the case was registered. He would further depose that since he was on special duty at Nadapuram, he could produce the property and material objects before Court only on 8/3/2001 with Exhibit P5 property list.

PW2, the police constable accompanying PW1 would give evidence corroborating the evidence of PW1. PW3, an independent witness, who is an attester to Exhibit P3 had proved his signature in Exhibit P3 and would depose that he had witnessed the arrest of the appellant and seizure of the contraband from the appellant.

PW4 would depose about the process of investigation and preparation of Exhibit P6 scene mahazar. PW5, the successor of PW1 would depose that he submitted Exhibit P7 forwarding note to send the sample for Chemical Examination and obtained Exhibit P8 report of Chemical Analysis. Exhibit P8 would show that the sample contained 26.95 % of ethyl alcohol by volume.

DW1 would depose that the appellant was a worker under him and on that day the appellant was engaged in thatching of the house and that in the locality one Valiyaparambath Kumaran was selling arrack and that the appellant was arrested on mistaken identity. But in cross-examination, he had to admit that the temple premises from where the appellant was arrested is at a distance of 2 = KM from his house and that by about 4.15 P.M., the appellant left his house. The arrest was at 5.30 P.M. Therefore, the evidence of DW1 is not at all helpful to the appellant in his defence.

In the light of the evidence of DW1, I had a critical scrutiny of the evidence of PWs 1 to 3. PW3 is the brother of DW1. There is no suggestion to PW3 that he has got any animosity to implicate the appellant with a serious offence of this nature. There is no case for DW1 also that PW3 has got any axe to grind against the appellant. Except some minor discrepancies and contradictions here and there, the evidence of PWs 1 to 3 are harmonious regarding the arrest of the appellant and seizure of MO1. On a reappraisal I find that the court below was justified in believing the prosecution case. I find no reason to interfere with the conviction under challenge. Having due regard to the fact that the appellant was a coolie, then aged 44 year, no bad antecedent is reported and taking into account of the quantity of the contraband seized, I find that the appellant is entitled to a little leniency and that a substantive sentence of rigorous imprisonment for nine months with the minimum fine would meet the ends of justice.

In the result, the appeal is allowed in part. While confirming the conviction, the sentence is reduced to rigorous imprisonment for nine months. The minimum fine imposed by the trial court with the default sentence is sustained. The under-trial imprisonment, if any, shall be set off. In the event of any deposit that shall be given credit to the fine amount. The trial court shall see the execution of sentence and report compliance.