Kerala High Court
Achuthan vs State Of Kerala on 26 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 26TH DAY OF AUGUST 2021 / 4TH BHADRA, 1943
CRL.A NO. 1199 OF 2013
AGAINST THE JUDGMENT IN SC 241/2012 OF ADDITIONAL SESSIONS
COURT (ADHOC), PALAKKAD
APPELLANT/ACCUSED:
ACHUTHAN
S/O.KUMARAN, AGED 38 YEARS
PERUVAKADAVATH VEEDU,
THOOTHA-THEKUMMURI DESOM,
CHERPULASSERY VILLAGE, OTTAPALAM,
PALAKKAD DISTRICT.
BY ADVS.
SRI.M.T.SURESHKUMAR
SRI.V.V.RAJA
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM 682031.
SMT. M.K. PUSHPALATHA SR.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
26.08.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl.Appeal no.1199/13 :2:-
JUDGMENT
Dated this the 26th day of August, 2021
Appellant was the accused in S.C. No.241 of 2012 on the
files of the Sessions Court, Palakkad. By the judgment under
challenge, the appellant was found guilty for the offence under
sections 8(1) and 8(2) of the Abkari Act and was sentenced to
undergo rigorous imprisonment for one year and to pay a fine of
Rs.1,00,000/-, in default to undergo simple imprisonment for
three months.
2. The prosecution case, as is seen from the judgment
under challenge, is that on 22.9.2011 at 17.45 hours the accused
was found in possession and transporting 5 litres of illicit arrack
at Appupadi-Peruvakkadavath public road, in front of his house
and thereby committed the offence as alleged.
3. After investigation and filing of final report, the learned
Judicial First Class Magistrate, Ottapalam found that the offence
involved is triable exclusively by the court of Session and hence
committed the same for trial to the Sessions Court, Kozhikode.
4. Prosecution examined PWs 1 to 4 and marked Ext.P1 to
Ext.P10. The glass seized from the accused was marked as MO1.
Crl.Appeal no.1199/13 :3:-
After analyzing the evidence adduced, the learned Sessions
Judge found the accused guilty and sentenced him as mentioned
earlier.
5. I have heard Adv.M.T.Sureshkumar, learned counsel for
the appellant as well as Adv.M.K.Pushpalatha, learned Public
Prosecutor.
6. Learned counsel for the appellant strenuously argued
that the prosecution case is liable to be discarded since the same
is built upon the confession statement alleged to have been
given by the accused as mentioned in Ext.P3 mahazar. He
further submitted that the alleged confession recorded in Ext.P3
has prejudiced his cause since the learned Sessions Judge was
swayed by the alleged confession. The learned counsel further
attacked the prosecution case by referring to the absence of
material object containing the contraband alleged to have been
seized from the accused. It was submitted that in the absence
of the can marked in evidence, it remains a mystery as to how
the alleged sampling could have been relied upon to convict the
accused. The learned counsel further submitted that the case of
the prosecution does not inspire confidence since the official
witnesses had not clearly deposed in tune with the prosecution
Crl.Appeal no.1199/13 :4:-
case. The learned counsel asserted that the contradiction in the
evidence of PW1 and PW2 strikes at the root of the very
prosecution case itself and thus canvassed for an acquittal of
the accused. In the alternative, the learned counsel sought for a
lenient view to be taken regarding sentence, considering the long
lapse of time and the reasonably young age of the accused.
7. The learned Public Prosecutor on the other hand
submitted that the alleged confession statement, as seen
recorded in the mahazar, had not been relied upon by the
prosecution to create a charge of manufacture of contraband
liquor nor had the court while framing the charge, utilized the
said statement to form a charge against the accused for
manufacture of liquor. She further asserted that a reading of
evidence of PW1 and PW2 clearly showed that there is no
contradiction much less material contradiction in their
depositions and on the other hand, it was submitted that, the
depositions were in harmony with each other. It was further
submitted that the accused does not deserve any leniency
considering the nature of evidence adduced and the
circumstances of the case.
8. I have perused the records marked in evidence as Ext.P1
Crl.Appeal no.1199/13 :5:-
to Ext.P10. The can containing the contraband has not been
marked in evidence. However, by Ext.P10, an inventory was
prepared with photograph of the can and the can was handed
over to the Excise Department itself, for disposal in accordance
with law. Thus, there is no merit in the contention that failure to
mark the can renders the conviction illegal. Ext.P3 mahazar
contains the details of the procedure adopted for sampling.
Proper seal was affixed on the sample and the contraband. The
sample seal was affixed on Ext.P7 forwarding note too.
Therefore, I find no reason to doubt the prosecution case on the
procedure for sampling adopted. Ext.P9 chemical analysis report
clearly refers to the sample sent for analysis. The certificate
identifies and affirms the tallying of seals affixed on the
forwarding note and in the sample sent up for analysis. In view
of the aforesaid circumstances, I find that the sample collected
from the contraband and sent up for analysis tally with each
other and the same sample was subjected to analysis, the report
of which was marked as Ext.P9. Therefore the prosecution had
clearly established that the sample seized on 22.9.2011 was sent
for analysis.
9. As far as the contention of the learned counsel for the
Crl.Appeal no.1199/13 :6:-
appellant about the confession statement recorded in Ext.P3
mahazar is concerned, though the same was initially found to be
impressive, on a deeper scrutiny and as pointed out by the
learned Public Prosecutor, I am of the view that the said
contention has no basis. Though a statement has been recorded
in the mahazar which is in the nature of a confession, I find from
the final report filed as well as the court charge that the said
alleged confession statement was never relied upon by the
prosecution either to formulate the case against the accused nor
by the learned Sessions Judge to frame the court charge or even
to base its conviction against the accused. The said statement
has no relevance in the case built up by the prosecution as
against the accused. Thus the contention of the learned counsel
for the appellant on the above score has no basis. I find no
prejudice having been caused to the accused merely because of
the entry of the alleged confession statement in the mahazar
since the said statement has not at all been relied either by the
prosecution or relied upon by the learned Sessions Judge in
framing the case or in convicting the accused. Thus, the
contention of prejudice raised by the learned counsel for the
appellant has no basis.
Crl.Appeal no.1199/13 :7:-
10. As far as the contention regarding the contrary stance
as deposed by PW1 and PW2 is concerned, I find on a repeated
reading of PW1 and PW2 that there is no difference or
contradiction in their depositions. Both of them speak in tune
with each other's depositions. PW1 stated that while they were
on patrol duty they found the accused standing in front of his
house, on the road, possessing a white can, and on identifying
the patrol party, he ran away after leaving the can. PW2 also in
his evidence had the same statement that on seeing the patrol
party, the accused ran away after leaving behind the contraband.
The contention of the learned counsel for the appellant in that
behalf therefore has no merits and the same is only to be
discarded. In view of the above, I find that the finding of guilt by
the learned Sessions Judge deserves to be upheld and I do so.
11. Coming to the sentencing part, the learned counsel for
the appellant strenuously attempted to persuade this Court to
convince that the sentence of one year is too harsh in the
circumstances of the case considering the age of the accused
and the date of detection. The accused was aged 38 years at the
time of detection and hence this case cannot be said to be a very
old case. I am therefore not inclined to accept the said
Crl.Appeal no.1199/13 :8:-
proposition regarding the leniency to be shown on the basis of
age and the length of time of pendency of this case.
12. However taking into consideration the circumstances of
the case, I am of the view that the sentence of one year ought to
be reduced. The accused was apprehended on 22.9.2011 and
was released on bail on 4.10.2011. Having regard to the proven
facts of the case, I am of the opinion that the sentence imposed
upon the accused could be modified from one year rigorous
imprisonment to three months simple imprisonment with a set
off for the period already undergone.
13. In the above circumstances, while affirming the
conviction of the accused for the offence under sections 8(1) and
(2) of the Abkari Act, I modify the sentence imposed upon the
accused to three months simple imprisonment and fine of
Rs.1,00,000/- with a default sentence of 60 days. The period
already undergone shall be set off against the above sentence.
The appeal is therefore allowed in part as above.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
/True Copy/ PS to Judge
