IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942
CRL.A.No.1181 OF 2006
AGAINST THE JUDGMENT DATED 03.04.2006 IN SC 603/2004 OF
ADDITIONAL SESSIONS COURT (ADHOC)-II, THALASSERY
APPELLANT/ ACCUSED :
KARINTHKARA KUZHIYIL SURENDRAN,
S/O.ANANDAN, AGED 39 YEARS, COOLIE,
KALAVAPARAMBU HOUSE, ARABI,
OLIKKAL,VAYATHUR AMSOM,
KANNUR DISTRICT.
BY ADV. SRI.CIBI THOMAS
RESPONDENT/ COMPLAINANT :
STATE OF KERALA,
REP. BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, KOCHI - 31.
BY SENIOR PUBLIC PROSECUTOR ADV.M.S.BREEZ
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
23.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.1181 OF 2006
2
JUDGMENT
Dated this the 23rd day of February 2021 Appellant was the sole accused in SC.No.603 of 2004 on the files of the Additional Sessions Court, (Ad hoc-II), Thalassery. By judgment dated 03.04.2006, appellant was found guilty for the offences under Section 55(a) of the Abkari Act (for short, 'the Act') as well as Section 471 read with Section 465 of the IPC. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- for the offence under Section 55(a) of the Act, in default to undergo rigorous imprisonment for three months. For the offence under Section 471 read with Section 465 IPC, he was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.5,000/- in default to undergo rigorous imprisonment for one months.
2. The prosecution case was that on 27.05.2002 at 8.00 p.m., the Sub Inspector of Panoor Police Station stopped the vehicle bearing Registration No.KL-IIE-3261. Since the vehicle did not stop, the same was chased and finally, 3865 packets of 75 ml. each of Karnataka arrack was seized from the jeep as kept in 11 sacks, CRL.A.No.1181 OF 2006 3 thereby committing the offence under Section 55(a) of the Act. On noticing that the actual registration number of the vehicle had been partially altered so as to make it appear as '8261' instead of '3261', offences under Section 468 IPC as well as 471 IPC were also charged against the appellant.
3. After investigation, when the final report was filed, it revealed a case exclusively triable by a Court of Session and hence the same was referred for trial to the Sessions Court. The prosecution examined PWs 1 to 10 and marked Ext.P1 to Ext.A5 apart from material objects MO1 to MO3. After analysing the evidence adduced, the learned Sessions Judge found the accused guilty for the offence under Section 55(a) as well as the offence under Section 471 read with Section 465 IPC and imposed the punishment as mentioned earlier.
4. Adv. Sri.Lohidakshan, the learned counsel appearing on behalf of Adv. R.Surendran contended that the accused was wrongly convicted. He further pointed out that after PWs 1 and 2 turned hostile, the prosecution did not examine any independent witnesses to prove the allegations. It was also pointed out that in the absence of any corroborating independent witnesses, the learned Sessions Judge erred in convicting the accused. He also pointed out that the CRL.A.No.1181 OF 2006 4 appellant was only a driver of the vehicle while two other persons, who were inside the car had managed to flee from arrest on the date of incident itself and the police was not able to either pursue them nor investigate into such an insulting escape. In such circumstances, the learned counsel canvasses that the accused ought to have been given the benefit of doubt. It was also argued that the offence under Section 465 or 471 had not been proved at all and there was nothing to mulct the appellant with such an offence.
5. The learned Senior Public Prosecutor Sri.M.S.Breeze, on the other hand, argued that the quantity of contraband seized from the possession of the accused was too large and that the evidence adduced clearly pointed out to the guilt of the accused. It was further argued by the learned Public Prosecutor that the guilty mind of the accused was clearly evident from the manner in which manipulation of the registration number of the vehicle was carried out and also that merely because two persons travelling along with the accused ran away, the same does not derogate from the culpability of the the appellant.
6. I have considered the rival contentions. While PW10 was on patrol duty, the jeep driven by the accused was shown the signal to stop. Disregarding the said signal, accused drove away in CRL.A.No.1181 OF 2006 5 an attempt to flee from the police intervention. The vehicle driven by the accused had to be chased thereafter and was later intercepted. On search of the vehicle, 11 sacks containing 3865 packets of arrack were detected. The samples were taken properly and the same was sent for analysis. By Ext.P10 chemical report, the sample was reported as containing ethyl alcohol. The procedure for sampling was strictly complied with and the forwarding note also was prepared in accordance with law. The original 11 sacks seized from the vehicle, were marked as MO3 series. There was also no delay in producing the contraband before court. Thus no technical defects in the procedure adopted by the detecting officer or the investigating officer could be pointed out by the appellant.
7. The thrust of the contentions raised by the learned counsel for the appellant was regarding the absence of independent witnesses. It is true that PWs 1 and 2 who were the independent witnesses examined to prove the seizure and arrest of the accused turned hostile, but that by itself is not a sufficient ground to doubt the prosecution story, if otherwise the evidence available before court infuses confidence on the seizure and arrest. PW10 has clearly stated that on the date of occurrence, the vehicle was intercepted and on inspection, the contraband was seized. There is absolutely no CRL.A.No.1181 OF 2006 6 reason to doubt the evidence of PW10, who in spite of serious cross examination did not vary from his stance. The evidence of PW10 certainly inspires confidence of the court to hold that even in the absence of any independent witnesses, the prosecution case cannot be doubted merely because the independent witnesses turned hostile.
8. It is true that PW8 had stated in his evidence that while the vehicle driven by the accused was intercepted, two persons ran away. Though two persons ran away when the police intercepted and they were not apprehended, that by itself is not a ground to doubt the prosecution case as against the present accused. Admittedly, the accused was driving the vehicle and the contraband was seized from inside the vehicle. From the evidence adduced, it is discernible that the accused was in control and dominion over the contraband article and hence he is guilty of the offence of transporting the contraband article. In the evidence of the hostile witness, PW1, it was stated that he had seen the plastic sacks in the vehicle driven by the accused. To that extent, his evidence can be utilised in support of the prosecution. PW2 had also deposed about the chase of the vehicle given by the police.
9. Thus from the conspectus of the evidence discussed CRL.A.No.1181 OF 2006 7 above, it can safely be concluded that the prosecution had clearly proved beyond reasonable doubt that the accused had transported the contraband articles thereby committing the offence under Section 55(a) of the Act.
10. As regards the charge under Section 465 IPC, it is necessary for the prosecution to prove the making of a false document with intend to cause damage or injury or to support any claim or title. The evidence adduced in the case nowhere indicates that the appellant had made any false document or false mark. The burden was entirely upon the prosecution to prove that the alleged forgery was carried out by the accused. Merely because the vehicle driven by the accused contained a forged mark, the same by itself will not be sufficient to prove the culpability of the appellant for the offence under Section 465 IPC. None of the witnesses have stated that it was the accused who made the forged mark. In such circumstances, the finding of guilty of the accused for the offence under Sections 465 and 471 of the IPC is liable to be set aside.
11. In the above circumstances, the conviction of the accused for the offence under Section 55(a) of the Act is confirmed while the conviction for the offence under Section 471 read with Section 465 IPC is set aside.
CRL.A.No.1181 OF 2006 8
12. While considering the sentence to be imposed for the accused, taking into reckoning the passage of 18 years from the date of detection and also the fact that the accused was in jail from 27.05.2002 till 07.07.2002, I am of the view that the sentence imposed on the accused ought to be modified. The accused is imposed with a sentence of the period of imprisonment already undergone apart from confirming the sentence of fine of Rs.1,00,000/- already imposed by the Sessions Court. The default sentence for failure to deposit the fine amount shall stand affirmed at rigorous imprisonment for three months.
The appeal is thus allowed in part by confirming the conviction of the appellant imposed by judgment dated 03.04.2006 on the files of the Additional Sessions Court (Ad hoc-II), Thalassery but by modifying the sentence of imprisonment as stated above and affirming the sentence of fine.
Sd/-
BECHU KURIAN THOMAS, JUDGE RKM