Joseph D'Souza vs The State Of Kerala
2021 Latest Caselaw 17326 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
        THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
   WEDNESDAY, THE 25TH DAY OF AUGUST 2021 / 3RD BHADRA, 1943
                       CRL.A NO. 310 OF 2014
 AGAINST THE JUDGMENT DATED 12.03.2014 IN SC. 861/2012 OF THE
   ADDITIONAL DISTRICT AND SESSIONS COURT - III, KASARAGODE


APPELLANT/ ACCUSED :

            JOSEPH D'SOUZA,
            AGED 54 YEARS, S/O. SAVIER D'SOUZA,
            RESIDING AT ARANTHOD HOUSE,
            KALLAKKATTA, MADHUR VILLAGE,
            KASARAGOD TALUK AND DISTRICT.


            BY ADV SRI.JAWAHAR JOSE


RESPONDENT :

            THE STATE OF KERALA,
            REPRESENTED BY PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, ERNAKULAM.


            BY SENIOR PUBLIC PROSECUTOR ADV.M.K.PUSHPALATHA



     THIS   CRIMINAL   APPEAL   HAVING    COME   UP   FOR   ADMISSION   ON
25.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.A.No.310 of 2014
                                      2




                                JUDGMENT

Dated this the 25th day of August 2021

Appellant assails the conviction and sentence imposed in

SC.No.861/2012 on the files of the Additional District & Sessions Court-III,

Kasaragode. By the judgment under challenge, appellant was found guilty

for the offence under Section 8(1) and 8(2) of the Abkari Act and was

sentenced to undergo rigorous imprisonment for two years and to pay a

fine of Rs.1 lakh in default to undergo rigorous imprisonment for three

months.

2. Prosecution alleged that on 08.08.2011, at 5.45 p.m., the

accused was found in possession of 2 litres of arrack in a white plastic can

having 10 litres capacity on the road side in Madhur village. After

complying with the procedure for arrest and sampling of the contraband,

the crime was registered. Pursuant to investigation, final report was laid

before the Judicial First Class Magistrate's Court-I, Kasaragode, alleging

offences under Sections 8(1) & 8(2) of the Act. On realising that the

offence alleged involved a case exclusively triable by a court of session, the

learned Magistrate committed the Sessions Court.

3. Prosecution examined PWs 1 to 6 and marked Exts.P1 to

P11. PW1 was the detecting officer, while PW2 was the CPO who Crl.A.No.310 of 2014

accompanied PW1 at the time of detecting the offence. PWs 3 and 4 were

independent witnesses, who turned hostile to the prosecution case while

PW5 was the village officer who prepared Ext.P10 site plan and PW6 was

the investigating officer who conducted the investigation and filed the final

report.

4. After analysing the evidence and the circumstances arising

in the case, the learned Sessions Judge found the accused guilty for the

offences alleged and convicted and sentenced the appellant to undergo

imprisonment as mentioned earlier.

5. I heard Adv.Jawahar Jose, the learned counsel for the

appellant as well as the learned Public Prosecutor Adv.M.K.Pushpalatha.

6. Adv.Jawahar Jose submitted that the entire prosecution

story is built up on a false premise and the appellant was arrayed as an

accused without any legal or factual basis. He further pointed out that the

prosecution case was not worthy of belief and that even if the entire

prosecution story was accepted, still the appellant was entitled to the

benefit of doubt as various links required to establish the guilt of the

accused could not be proved beyond reasonable doubt by the prosecution.

It was further submitted that in any event, considering the age of the

accused and the minimal quantity of arrack alleged to have been possessed

by the appellant, a lenient view ought to have been adopted.

7. The learned Public Prosecutor Adv.M.K.Pushpalatha, on the Crl.A.No.310 of 2014

other hand submitted that the accused does not deserve any leniency since

every link in the prosecution case had been proved beyond reasonable

doubt. It was also pointed out by the learned Public Prosecutor that the

investigation was conducted in due compliance with all requirements under

law, including production of the accused and the contraband within time

before the court, forwarding the sample without delay to the analytical

laboratory and compliance of all other legal requirements. It was also

submitted by the learned Public Prosecutor that the policy of the

legislature, as evident from the severity of the punishment provided for

under the statute cannot be lost sight of under the fabric of any leniency

shown, based upon consideration of age or the quantity of contraband

seized. She therefore urges that this appeal be dismissed.

8. I have considered the rival contentions. PW1 was at the

relevant time, the Sub Inspector of Police of Vidyanagar Police Station. He

had deposed as PW1 that, while he was on patrol duty he received reliable

information about the sale of arrack. Along with PW2 and other police

officers, when PW1 reached the alleged place of occurrence, the accused

attempted to flee away from the spot. However, after intercepting him and

on verification it was found that he was in possession of a plastic can

containing a liquid which had the smell of arrack. On tasting the same, it

was realised that the accused was in possession of arrack. Thereafter,

complying with all the prescribed procedure and after taking samples from

the contraband seized and after preparing a forwarding note for submitting Crl.A.No.310 of 2014

the sample for chemical analysis, the case was registered. The accused

was thereafter produced before the Court within the period prescribed

under law.

9. PW2 spoke in similar terms as PW1, including the fact that

he was an eye witness for the seizure and arrest of the accused. PWs 3

and 4 are independent witnesses of which PW4 turned hostile while PW3

admitted during his deposition that he is an eye witness and had seen the

seizure and arrest of the accused. PW6 was the Sub Inspector of Police at

the relevant time.

10. All the witnesses except PW4 had spoken in congruity with

the prosecution case. There is no reason to doubt any of the witnesses.

PW3, who had clearly deposed to the fact that he saw the accused with the

contraband and the arrest being made had not even been questioned

regarding any ulterior motives for him to depose against the accused.

11. The forwarding note marked in evidence as Ext.P6 bears

the seal of the officer who collected the sample. Similarly in Ext.P11 report

of analysis, it has been stated that the seals on the bottles were found to

be intact and tallied with the sample seal provided. Thus, on an

appreciation of the evidence adduced, it is evident that the prosecution has

clearly proved its case beyond reasonable doubt. None of the links in

establishing the guilt of the accused have been broken. Therefore the only

conclusion that could be arrived at is that the accused is guilty of the Crl.A.No.310 of 2014

offences under Sections 8(1) & 8(2) of the Act.

12. A perusal of the judgment under challenge also shows that

the learned Sessions Judge had properly appreciated the evidence adduced

in the case and had appreciated every circumstance. I find no reason to

interfere with the finding of guilt by the learned Sessions Judge.

Accordingly, I affirm the conviction of the accused in SC.No.861/2012 on

the files of the Additional District & Sessions Court-III, Kasaragode.

13. However, as regards the sentencing of the accused, I am

swayed by the persuasive submissions of the learned counsel for the

appellant that having regard to the quantity of contraband seized, along

with the age of the accused, apart from the lapse of more than a decade

since the detection of the offence, a lenient view can be adopted in the

instant case. It is seen from the records of the case that the accused was

apprehended on 08.08.2011 and was released on bail on 16.09.2011. On

a consideration of the entire circumstances in the case, I am of the view

that the sentence of two years imposed by the learned Sessions Judge can

be modified to the period already undergone by the appellant in this case.

In the above circumstances, while affirming the conviction

of the accused in SC.No.861/2012 on the files of the Additional District

& Sessions Court-III, Kasaragode, I modify the sentence imposed by

the learned Sessions Judge to the period already undergone by the

accused. However the fine and the default sentence imposed by the Crl.A.No.310 of 2014

learned Sessions Judge shall stand affirmed.

The Criminal Appeal is allowed in part as above.

Sd/-

BECHU KURIAN THOMAS, JUDGE

RKM