Kunjumon @Varghese vs State Of Kerala

In this appeal preferred under Section 374(2) of the Code of Criminal Procedure, hereinafter referred to as the 'Cr.P.C', the accused who stands

convicted in S.C.No. 234/2005 by the Additional Sessions Judge (Adhoc) â€" II, Thodupuzha challenges the legality and correctness of the conviction

and sentence imposed on him. That case was taken on file on a final report laid by Sub Inspector of Police, Rajakkadu Police Station in Crime No.

14/2003 of that police station. The prosecution allegation is that on 17.01.2003 at 4.45 p.m., while the Sub Inspector and party were on patrol duty,

when they reached a place by name Vilangupara, the Sub Inspector received reliable information about illegal sale of liquor in the provision store in

Illicity, run by the appellant. Thus after preparing a search list and sending it to the court, shop No. VII/197 of Bisonvalley Panchayat, run by the

appellant was searched and he was found in possession of 2.150 litres of Indian made foreign liquor which was kept there for the purpose of sale. The

police seized the contraband in the presence of independent witnesses under a mahazar; the appellant was arrested and taken to the police station and

Crime No. 14/2003 was registered under Section 55(a) and (h) of the Abkari Act. Samples were taken from two bottles.

The appellant was produced before the court on the following day and was remanded to judicial custody.

After investigation a charge sheet was laid before the Judicial First Class Magistrate, Adimaly, alleging offences punishable under Section 55(a) and

(h) of the Abkari Act. The Magistrate, after completing the procedural formalities committed the case to the Sessions Court, Thodupuzha from where

the matter was made over to the trial court.

The appellant was defended by a counsel of his choice. After hearing counsel on both sides, when the charge alleging offence punishable under

Section 55(a) of the Abkari Act was framed, read over and explained in Malayalam, he pleaded not guilty. He was on bail.

Prosecution examined seven witnesses as PWs 1 to 7. Exts.P1 to P11 were marked. The material objects were identified and marked as MOs 1 to

After closing the prosecution evidence, when examined under Section 313(1)(b) of the Cr.P.C., he reiterated his innocence and denied all the

incriminating materials and statements spoken against him. According to him, he has no connection with the material objects. As it is not a case to be

acquitted under Section 232 of the Cr.P.C., he was called upon to enter on his evidence in defence. One witness, who is the younger brother of the

appellant was examined as DW1. After concluding evidence, and hearing counsel on both sides, the learned Additional Sessions Judge repelled the

plea of the appellant and found him guilty of offence punishable under Section 55(i) of the Abkari Act and sentenced to undergo rigorous imprisonment

for one year and also imposed a fine of Rs. 1,00,000/-, in default to undergo rigorous imprisonment for three months. That conviction and sentence are

the subject matter of this appeal.

I have heard the learned counsel for the appellant and also the learned Public Prosecutor representing the respondent State. The entire records of

the trial court were summoned and examined.

The conviction is largely based on the oral testimony of PW7 and matters proved through documents relied on by the prosecution. Even though

PWs 1 and 3, attestors to the Ext.P1 seizure mahazar had turned hostile to the prosecution and gave a statement supporting the version of the defence

which was put to the witnesses and also through the oral testimony of DW1, the learned Sessions Judge placed reliance on the version of PW7 and

other materials. It was also noticed that PWs 1 and 3 have rendered partial support since they admitted having signed the Ext.P1 mahazar. The court

disbelieved the versions given by DW1 and that of matters spoken by PWs 1 and 3 in cross examination to the effect that the appellant was removed

to the police station in the night of 17.01.2003 and that PWs 1 and 3 were made to sign Ext.P1 at the police station on 18.01.2003.

PWs 1 and 3 are the attestors to the Ext.P1 mahazar. The definite case of the prosecution is that when PW7 Sub Inspector and party had searched

the said shop on 17.01.2003, at 4.45 p.m., the appellant was in the shop, 2.150 litres of Indian made foreign liquor was found kept beneath the table on

the north eastern corner of the shop room; the item was seized under Ext.P1 mahazar, sample was taken at the spot itself from two bottles, the

appellant was arrested and removed to the police station and was produced before court on 18.01.2003. Both PWs 1 and 3 have admitted their

signatures in the Ext.P1 mahazar, but according to them they did not witness the police seizing the contraband from the shop room. Both of them are

neighbours to the appellant. They wanted to say that they had seen the police at the residence of the appellant in the night, police had taken him from

the residence and thereafter, both the witnesses were summoned to the police station on 18.01.2003 and then were asked to sign the document. An

identical version was given by DW1, the younger brother of the appellant also.

The appellant made a faint attempt that some liquor was seized by the police in the night from behind the lean-to, behind his shop, at that time he

had gone home and that was how police went to his house in search of him and then removed to the police station. Such a version has been spoken to

by PW2, who is running a tea shop adjacent to the shop run by the appellant. According to him he had seen the police removing some liquor from

behind the shop, at that time the appellant was not in the shop. PWs 1 to 3 are the independent witnesses cited to prove the occurrence. Both PWs 1

and 3 are neighbours to the appellant; PW2 is running a tea shop adjacent on the west of the shop run by the appellant. In normal circumstances, it

cannot be expected that they would give a statement supporting the prosecution that would run against the interest of the appellant. All of them were

declared hostile to the prosecution and were cross examined by Public Prosecutor.

PW4 the owner of the building proved the Ext.P2 lease agreement. In cross examination by defence counsel, the witness deposed that the Ext.P2

was prepared on the direction of the police. Even though this document is not an admissible one, much importance cannot be given to the same. PW5

is an attestor to Ext. P3 mahazar. PW6 is the Sub Inspector who conducted the investigation and laid the charge sheet. He denied that the Ext. P2

was instantly created for the purpose of the case.

All the same PW7 is Sub Inspector who detected the crime, seized the contraband from the shop room, collected sample, arrested the appellant

and registered the crime gave a version in support of the prosecution case. The learned Additional Sessions Judge has believed his version. In fact his

testimony stands unshaken in cross examination. After reassessing the materials, I also do not find any reason to strike a different note or disbelieve

his testimony. He is a responsible police officer. His definite case is that he had proceeded to the shop room of the appellant on getting reliable

information about illegal vending of foreign liquor in the shop room run by the appellant. No one has a case that he has any previous acquaintance with

the appellant. It was also not remotely suggested that PW7 was motivated by any malafide, so that the appellant was inculpated in a false case.

Secondly, the remand report indicates that the appellant was produced before court on the following day itself. He was specifically asked to

whether he has any complaint against officials; he answered in the negative. If it was a case as wanted to make out through PWs 1 to 3 and DW1,

necessarily the appellant would have related such a version to the Magistrate. From the fact that he had no such complaint to be stated, at the earliest

possible opportunity when he was produced before court, it can safely be concluded that he had no such case at that point of time. The necessary

inference is that, such a case has been invented in subsequent point of time on experimental basis, to get out of criminal liability.

That means, the oral testimony of PW7, the partial support given by PWs 1 and 3 and the supporting documents do suggest that the appellant was

found in possession of 2.150 litres of Indian made foreign liquor from his shop room. The statement given by PW4 Santhosh, the owner of the building

where the appellant is running the shop and the Ext.P2 lease agreement suggests that the appellant is running the shop. Here also, even though DW1

tried to apprise the court that the shop is run by himself and the appellant jointly, no better documents or circumstances could be brought out to belie

the prosecution version. That means, the only possible conclusion is that the appellant had stored so much quantity of liquor in his shop room for the

purpose of sale. In that way, prosecution is justified in alleging offence punishable under Section 55(i) of the Abkari Act.

The other materials like Ext.P5 certificate issued by the Chemical Examiner has not been disputed. Even though it has come out that the material

objects seized from the possession of the appellant on 17.01.2003 was produced only on 28.01.2003, PW7 has asserted that till the time it was kept in

his safe custody. Such a claim has not been called in question.

After evaluating the materials including the oral testimony of witnesses it can safely be concluded that the learned Additional Sessions Judge has

proceeded to convict the appellant based on satisfactory materials. After re-visting the materials, there are no valid reasons to take a different view.

Thus the conviction entered upon by the learned Judge is liable to be confirmed.

Regarding sentence, the learned counsel for the appellant has submitted that from 2003 onwards the appellant is after the case, that he is a first

offender, but even the prosecution has no case that he has any bad antecedents. Thus the counsel prayed for showing maximum leniency in sentence.

The learned Public Prosecutor has also submitted that the appellant has no previous criminal history to his credit. Considering this aspect and since the

quantity of liquor is only 2.150 litres, I am also inclined to take a lenient view. It seems that maintaining the fine imposed on the appellant and also the

default sentence, punishment can be modified and limited to rigorous imprisonment for 15 days. The period of custody already undergone by him shall

be set off under Section 428 of the Cr. P.C.

In the result, confirming the conviction, sentence is modified into rigorous imprisonment for 15 days; fine and in default sentence imposed by the trial

court shall remain as such. With the above modification, the appeal is disposed of.