V. Siraj and V. Ragesh vs State of Kerala

V.K. Mohanan, J.—The appellants, two in numbers, who faced the prosecution for the offence u/s 8(2) of the Abkari Act, connected with the allegation of possession and transportation of more than 6,000 ltrs. of spirit, preferred this appeal challenging their conviction and sentence, for the said offence imposed on them vide judgment dated 8.12.2011 in S.C. No. 488 of 2007 of the court of Additional District and Sessions Judge (Adhoc-II), Kasaragod. The prosecution allegation against the accused is that while PW1, the then Excise Circle Inspector, Excise Circle Office, Hosdurg, along with the other Excise officials, were conducting vehicle checking on 17.8.2005 at about 10.30 a.m., he had seen a lorry bearing Regn. No. KL7 AF 4896 coming from Kanhangad side and he gave hand signal to stop the vehicle and accordingly, on stopping the vehicle, when he enquired with the driver of the vehicle about the articles being transported in the vehicle, he was told that the vehicle contained fish. On suspicion, PW1 opened the back door of the lorry and at that time, 48 numbers of plastic trays were seen kept therein and on further examination of the said trays, decade fishes and ice pieces were seen therein. According to the prosecution, when all the above trays were removed, PW1 and party noticed 195 numbers of can of 35 litres capacity and those cans were found to contain the spirit. Therefore, on satisfaction that the accused persons were transporting the liquor in contravention of the provisions of the Abkari Act, PW1 has arrested the accused persons and seized the articles. Thereafter, the accused, contraband articles and the case records were taken to the Range Office, Hosdurg, where crime No. 31/2005 was registered for the offence punishable u/s 8(2) of the Abkari Act. On completing the investigation, a charge sheet was filed against the accused two in numbers, in the Judicial First Class Magistrate Court-I, Hosdurg whereupon C.P. No. 38/2007 was instituted and the learned Magistrate after complying with the provisions of Section 207 of the Cr.P.C., by his order dated 8.6.2007 in C.P. No. 38/2007 committed the case to the Sessions Court where the same is received as S.C. No. 488 of 2007 and thereafter, made over to the present trial court for disposal.

When the accused appeared before the court below, after hearing the prosecution as well as the defence, a formal charge was framed against the accused for the offence punishable u/s 8(2) of the Kerala Abkari Act, which when read over and explained to the accused, they denied the same and pleaded not guilty. Consequently, the prosecution adduced its evidence by examining Pws. 1 to 6 and producing Exts. P1 to P19 documents. The material objects are identified and marked as Mos. 1 to 3. No evidence either oral or documentary was produced from the side of the defence. The trial court has finally found that the accused were found transporting 195 numbers of cans containing spirit and accordingly, held that the prosecution has succeeded in proving the guilt of the accused beyond reasonable doubt and consequently, the accused were found guilty for the offence punishable u/s 55(a) of the Abkari Act and accordingly, they are convicted thereunder. On such conviction, each of the accused is sentenced to undergo rigorous imprisonment for five years and each of them is further sentenced to pay fine of Rs. 1 lakh and in default, to undergo rigorous imprisonment for one year each. Set off is allowed u/s 428 of the Cr.P.C. It is the above finding, order of conviction and sentence that are challenged in this appeal.

I have heard Mr. P.S. Sreedharan Pillai, learned counsel appearing for the appellants and the learned Public Prosecutor.

The prosecution to substantiate its allegation against the accused, mainly relied upon the evidence of Pws. 1 to 3 and Pws. 5 and 6, among which PW1 is the star witness of the prosecution since it was he who detected the crime. When PW1 was examined, he had deposed strictly in terms with the prosecution allegation. The prosecution allegation reveals through the deposition of PW1, who detected the crime. According to him, on 17.8.2005, he was working as C.I. of Hosdurg Excise Circle Office and on the morning of that day, at about 10.30 a.m. when himself and the C.I., who led the Kasaragod Special Squad and the Excise Inspector, Hosdurg Excise Range were conducting vehicle inspection at a place viz., Eyengoth on the National Highway, which is a place situated on the eastern side of the Hosdurg Excise Range, the vehicle bearing Registration No. KL7 AF 4896 was seen coming from Kanhangad side and hand signal was given to stop the vehicle and accordingly, the vehicle was stopped and the inmates of the vehicle were the driver as well as its cleaner. According to PW1, on suspicion, the lorry was intercepted at the spot and decade fishes and ice pieces were found in blue coloured trays. Thus, he found fishes in 48 trays. According to him, behind the trays, he had seen 195 cans each having the capacity of 35 litres and the said cans were filled with spirit. He had identified the liquor as spirit by smelling and tasting. According to him, the said fact also had been convinced the witnesses. He had identified the accused as the persons found in the vehicle among with the second accused is the cleaner and the first accused was the driver. He deposed that the accused were arrested as per law and procedure and also stated that the contraband articles were seized as per the mahazar. Thus, when PW1 was examined, Exts. P1 and P2 arrest memos with respect to the accused Nos. 1 and 2, Exts. P3 and P4 inspection memos, P5 and P6 arrest intimations, Ext. P7 search list, Ext. P8 copy of the R.C. Book of the lorry, Ext. P9 copy of the insurance certificate of the vehicle, Ext. P10 copy of the permit and Ext. P11 seizure mahazar with respect to the seizure of the contraband article are marked through him. PW2 is the Circle Inspector of Excise, Special Squad through whom Ext. P12 scene mahazar was marked. PW3 is the then Village Assistant of the Kanhangad Village through whom Ext. P13 site plan was got prepared and marked. Though the prosecution has examined PW4 an independent witness, he turned hostile towards the prosecution. PW5, the then Kasaragod Excise Circle Inspector, Special Squad, completed the investigation and laid the charge. Ext. P14 chemical analysis report is marked through PW5. PW6 was the then Excise Range Inspector of Hosdurg who accompanied PW1 during the inspection of the vehicle and detection of the crime. When PW6 was examined, he had also deposed strictly in terms of the prosecution allegation particularly in tune with the deposition of PW1. When he was examined, Ext. P15 crime and occurrence report, Ext. P16 property list, Ext. P17 forwarding note, Ext. P18 inventory and Ext. P19 series of photographs (three in numbers) of the property were marked. These are the evidence and materials referred to and relied on by the learned Judge of the trial court in support of his findings and the order of conviction recorded against the accused.

Mr. P.S. Sreedharan Pillai, learned counsel for the appellants vehemently submitted that the prosecution has miserably failed to prove the seizure of the contraband article from the possession of the appellants and their role and participation during the time of the alleged inspection of the vehicle and the seizure of the contraband article. In support of the above submission, learned counsel took me through the depositions of Pws. 1,2 and 6 particularly with respect to the physical position of the appellants/accused at the time of the alleged inspection and seizure of the contraband article. It is also pointed out that though the prosecution has got a case that the 48 trays, which contained decade fish and ice pieces, are in blue colour, some of such trays are grey in colour and the said fact is not tallying with the prosecution case. It is also the submission of the learned counsel that the prosecution has also not succeeded in clearing the doubt regarding the label, serial number and specimen signature found on the properties. It is strenuously submitted by the counsel for the appellants that the prosecution has miserably failed to examine any independent witness to prove its allegation, in spite of the fact that even according to the prosecution, adjacent to the place of occurrence, there were number of dwelling houses. It is also contended by the learned counsel that PW5 is incompetent due to lack of territorial jurisdiction to lay the charge. In support of the arguments of the learned counsel, he placed reliance upon the following decisions reported in Subrahmaniyan Vs. State of Kerala, , Saji @ Kochumon v. State of Kerala [ 2010 (3) KLT 471], Ravi Vs. State of Kerala, and Inder Sain Vs. State of Punjab, .

On the other hand, the learned Public Prosecutor submitted that the evidence of Pws. 1,2 and 6, with respect to the seizure of the contraband article and the inspection of the vehicle and about the presence of the appellants, are in tact and the discrepancies pointed out by the counsel for the appellants are minor in nature and therefore, the same are not sufficient to shake the prosecution allegation. It is also the submission of the learned Public Prosecutor that from the deposition of PW2, the change of colour with respect to the tray is convincingly explained and the same is quite natural and therefore, the said fact is not sufficient to disbelieve the case of the prosecution. It is also the submission of the learned Public Prosecutor that there is no contradiction between the specimen signatures. The learned Public Prosecutor strenuously submitted that with respect to the competency and jurisdiction of PW5, the appellants are not entitled to advance such an argument, especially when no question is put to PW5 during his cross-examination and no explanation is sought from him at that time. It is the further submission of the learned Public Prosecutor that even as per the case of accused Nos. 1 and 2/the appellants herein, they have admitted their presence at the place of occurrence, but they failed to give any explanation for their presence at the relevant time and since no question was put to PW3, the then Village Officer who prepared the site plan and as such, there is no evidence to show that there was a Marble Depot and the presence of the appellants, who is hailing from Kannur is not properly explained so as to get over the prosecution allegation. Thus, according to the learned Public Prosecutor, the possession of huge quantity of spirit by the accused/appellants are proved by the prosecution beyond reasonable doubt and therefore, Section 64 of the Abkari Act is available in favour of the prosecution and the appellants/accused failed to give any convincing explanation for such possession of huge quantity of spirit. Thus, according to the learned Public Prosecutor, the findings of the court below are based upon the evidence and materials on record and the same requires no interference.

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

In the light of the rival contentions and in the light of the evidence and materials on record, the question that arises for consideration is whether the trial court is justified in its finding that the appellants/accused have committed the offence punishable u/s 55(a) of the Abkari Act and whether the prosecution has succeeded in proving that the accused were found in possession of the contraband article while they were transporting the same and whether the appellants/accused had been in the possession of the contraband article involved in the present case.

In order to assail the findings of the court below and the order of conviction, the first point raised by the counsel for the appellants is that with respect to the seizure of the contraband articles, there is contradiction in the evidence of Pws. 1,2 and 6 and also with respect to the colour difference among the 48 trays. Considering the above contention of counsel for the appellants, I have verified the depositions of Pws. 1,2 and 6. PW1, in chief examination, has stated that when the vehicle was stopped, the accused were there in the lorry as cleaner and driver. PW1 has also deposed about the relevancy of the documents marked through him which shows the presence of the accused. During the cross-examination, PW1 has stated as follows:-

excise custody A1-A2

When PW2 is examined, he had also deposed about the presence of the accused and their arrest, seizure of the contraband article etc. During the cross-examination of PW2, he had deposed as follows:-

He had deposed that he had not noticed any grey coloured trays and if such trays are produced, he cannot say the same belong to which case. Similarly, when PW6 was examined, he had also deposed fully in accordance with the prosecution allegation and in the same fashion deposed by Pws. 1 and 2. When PW6 was examined during the cross-examination itself, PW6 has stated that there was no marble depot at that time, adjacent to National Highway and the saw mill was about 300 metres away. During the cross-examination, PW6 has also deposed as follows:-

PW1-PW1

So on a comparison of the evidence of Pws. 1,2 and 6, it can be seen that all the above three official witnesses have categorically stated the presence of the accused/appellants at the time of inspection of vehicle in question and seizure of the contraband article. It is also relevant to note that Pws. 1,2 and 6 are uniform in their depositions about the vehicle inspection conducted by the party, arrival of the vehicle driven by the second accused from the side of Kanhangad and the arrest of the accused, preparation of Ext. P12 seizure mahazar and other documents. In this juncture, it is relevant to note that the above incident has taken place on 17.8.2005 and these witnesses were examined after 4 years from the date of occurrence. Therefore, even though there is some slight difference with respect to the physical position of the accused persons at the time of the inspection of the vehicle and the detection of the contraband article, the same are not sufficient to affect the core of the prosecution case and its credibility, particularly when the presence of the accused is proved beyond doubt.

In this juncture, it is relevant to note that the accused are hailing from Kannur and there is no plausible explanation from the accused for their presence at the place of occurrence. From the cross-examination, it appears that the story put forward by the accused to justify their presence is to the effect that after visiting a marble depot situated adjacent to the place of occurrence and while they were waiting for the bus in the waiting shed, they had been taken into custody. The above suggestion is denied by PW6. When PW3, the Village Assistant was examined, no question is put to him about the presence of any marble depot. During the cross-examination, PW1 has stated that he was not aware or heard about any marble depot near to the place of occurrence, but he had stated that there was a wood shop(saw mill) on 50 to 75 metre southern to the place of occurrence. PW1 has also denied the suggestion of the defence that the accused were arrested when they were waiting in the bus shelter while returning after their visit in the marble depot. Thus, it can be seen that the prosecution has succeeded in proving the presence of the accused along with the contraband article and their arrest from the place of occurrence. The accused has also admitted their presence, but they took a contention that they were taken into custody from the nearby bus shelter while they were returning after visiting the marble depot. Except the mere suggestion about the same, the defence did not succeed in bringing out any material facts in support of the above case, particularly when they are hailing from Kannur. In short, the presence of the accused along with the vehicle which contained huge quantity of the rectified spirit and the factum that they were arrested while transporting the same, are proved by the evidence of PW1, PW2 and PW6 and contemporary documents Exts. P1 to P11 which were prepared at the place of occurrence itself. The accused, though in different manner, admitted their presence in the locality and their reason for their presence as suggested by them are not probabilised, especially in the absence of any convincing explanation from them who are hailing from Kannur District. With respect to the difference in colour of the tray, as rightly pointed out by the learned Public Prosecutor, the same will be as a result of passing of the time during which the same exposes to sunlight.

Another contention taken by the learned counsel for the appellant is that the prosecution case is not supported by any independent evidence and therefore, the conviction based upon the evidence of the Excise Officials is liable to be set aside. I am unable to sustain the above contention. In this case, it can be seen that the prosecution has cited and examined PW4 to prove the seizure and arrest of the accused, but he turned hostile. During his cross-examination, though he denied his signature in Ext. P11 seizure mahazar, deposed that ''Excise Office-'' The above fact which brought during the cross-examination, positively proves that Ext. P11 contains the signature of PW4, but he denied the same during the chief examination only for the purpose of assisting the accused to evade from the penal liability. In the decision reported in Vikraman @ Diksoo Vs. State of Kerala, , this Court has held that the courts are not unfamiliar with witnesses turning hostile to prosecution. It was also held that if the evidence of the detecting officer is credible and believable, the hostility shown by an independent mahazar witness need not deter the court from considering the testimony of the detecting officer and proceedings accordingly. In the decision reported in Abdul Rasheed Vs. State of Kerala, particularly in paragraph 9, this Court has also held as follows:-

It is true that Pws. 1 to 3 who are the independent witnesses to the search and seizure of MO1 Video Cassette turned unfriendly to the prosecution. But then such independent witnesses turning disloyal to the prosecution is not a noval phenomenon. Courts are not unfamiliar with such dishonest persons who are prepared to mortgage their conscience with a view to salvage their fellow trader. Courts very often come across such witnesses who turn out to be cunning performers in the witness box. The hostility exhibited by such witnesses cannot throw overboard a prosecution which is otherwise true and genuine. If the testimony of the official witnesses is blemishless and free from suspicion and inspires confidence, the hostility shown by ill-motivated independent witnesses is of no consequence........

In the present case, as I indicated earlier, though during chief examination, PW4 denied his signature, during cross-examination, it is brought on record that he had put his signature to Ext. P11. I have already found, the evidence of Pws. 1,2 and 6 official witnesses in all respects mutually corroborate and support the prosecution case and nothing brought on record to discredit their version except the minor infirmities mentioned earlier which are not sufficient to shake the core of prosecution case as such. Therefore, the factum that PW4 turned hostile, in the given circumstances and for the above reason, will not affect the prosecution case as such since the same are fully supported and protected by credible evidence of Pws. 1,2 and 6 with respect to the arrest of the accused along with contraband article on the date of the incident.

With respect to the competency of PW5, who laid the charge, learned counsel though advanced an argument to that effect, according to me, the same is not substantiated since no materials or evidence on record is brought to my notice to show that PW5 is incompetent to lay the charge. It is pertinent to note that though PW5 was cross-examined extensively, no question is put to him challenging his competency to lay the charge and no explanation or answer elicited him in support of the above contention. No doubt, PW5 at the relevant time was working as Circle Inspector of Excise, Kasaragod and his official capacity to lay the charge, there is no challenge. As I indicated earlier, regarding the competency to lay the charge connected with an offence coming under the territorial jurisdiction of Excise Range, Kanhangad nothing brought on record against the prosecution. Therefore, the above contention of the learned counsel also fails.

In the light of the above discussions and evidence and materials referred to, I am of the view that the trial court is fully justified in its finding and the conviction recorded in favour of the prosecution and against the accused. Resultantly, the inevitable conclusion is that the prosecution has succeeded in establishing that the appellants/accused were found in possession of 6825 litres of spirit while the same were transporting in a lorry bearing Regn. No. KL7 AF 4896. Therefore, the conviction recorded by the trial court against the appellant for the offence punishable u/s 55(a) is confirmed.

With respect to the sentence, the learned counsel submitted that the appellants are poor cleaner and driver of the vehicle and they are innocent as they were not aware of the fact that the contraband articles were kept in the vehicle and the counsel further submitted that the prosecution has conducted no investigation to trace out the source of the contraband article and the persons responsible for the same and as such, there is defect in the investigation and it is not proper to shoulder the entire liability on the appellants, who are poor cleaner and driver of the vehicle and therefore, leniency may be shown with respect to the sentence imposed on the appellants. According to me, as rightly found by the learned Judge of the trial court, there was fault on the part of the prosecution agency in conducting proper investigation and tracing out all persons connected with the contravention of the provisions of the Act. However, considering the facts and circumstances involved in the case, according to me, the substantial sentence imposed on the appellants requires modification, but at the very same time, it is relevant to note that the total quantity involved is 6825 litres of rectified spirit and the appellants were at the age of 28 and 35 respectively at the time of the incident. Having regard to the facts and circumstances involved in the case, I am of the view that three years and six months (42 months) rigorous imprisonment will be sufficient to meet the ends of justice. Accordingly, in modification of the sentence imposed on the appellants by the trial court, each of the appellants is sentenced to undergo 3= years of rigorous imprisonment and the sentence of fine and the default sentence are retained as imposed by the trial court. The appellants are entitled to get the benefit u/s 428 of the Cr.P.C.

In the result, the above appeal is dismissed confirming the conviction of the appellants for the offence u/s 55(a) of the Abkari Act as imposed by the judgment dated 8.12.2011 in SC No. 488 of 2007 of the court of Additional Sessions Judge, Adhoc-II, Kasaragod, but subject to the modification with respect to the sentence to the extent indicated above.