Cherkulath Suresh vs The Excise Inspector
2021 Latest Caselaw 4300 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

          THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

    FRIDAY, THE 05TH DAY OF FEBRUARY 2021 / 16TH MAGHA,1942

                       CRL.A.No.297 OF 2007

AGAINST THE ORDER DATED 23-01-2007 IN SC 358/2005 OF ADDITIONAL
   SESSIONS COURT, FAST TRACK COURT NO.III (AD HOC), MANJERI


APPELLANT/ ACCUSED :

             CHERKULATH SURESH,
             AGED 34 YEARS,
             S/O. KUMARAN, CHERKULATH,
             PACHATTIRI AMSOM, PERIYAPPURAM DESOM,
             TIRUR TALUK.

             BY ADV. SRI.K.M.SATHYANATHA MENON
             BY ADV. ARUN KUMAR

RESPONDENTS/ COMPLAINANT & STATE :

      1      THE EXCISE INSPECTOR
             EXCISE RANGE OFFICE, TIRUR,
             MALAPPURAM DISTRICT.

      2      THE STATE OF KERALA REPRESENTED BY
             THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
             HIGH COURT BUILDINGS, HIGH COURT ROAD,
             ERNAKULAM, KOCHI - 682 031.

             BY PUBLIC PROSECUTOR ADV.DHANIL M.R.


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD            ON
03-02-2021, THE COURT ON 05-02-2021 DELIVERED THE FOLLOWING:
 CRL.A.No.297 OF 2007

                                        2



                                  JUDGMENT

Dated this the 5th day of February 2021

The appellant is the accused in SC.No.358/2005 on the

files of the Additional Sessions Court, Fast Track Court No.III (Ad

hoc), Manjeri. He was found guilty for the offence under Section 8(1)

of the Abkari Act and was sentenced to undergo rigorous

imprisonment for two years and to pay a fine of Rs.1,00,000/- in

default to undergo simple imprisonment for six months by judgment

dated 23.01.2007. The appellant assails the aforesaid conviction and

sentence.

2. The prosecution alleged that on 24.12.2004, at around

6.50 a.m., the Excise Circle Inspector, while on patrol duty found the

accused in possession of five litres of illicit arrack carried by him for

sale in a can. After completing the formalities and arrest of the

accused, the crime was registered. After completion of investigation

and other statutory requirements, the final report was filed. On

noticing the existence of a case exclusively triable by a Court of

Session, the learned Magistrate referred the case to the Court of

Sessions.

3. In order to prove the prosecution case, PWs 1 to 5 CRL.A.No.297 OF 2007

were examined and Exts.P1 to P8 were marked apart from material

objects MO1. After analysing the evidence adduced in the case, the

learned Sessions Judge found the accused guilty and convicted him

and imposed the sentence as mentioned earlier.

4. I have heard Adv.K.M.Sathyanatha Menon along with

Ad.Arun Kumar as well as the learned Public Prosecutor Adv.Dhanil

M.R.

5. The learned counsel for the appellant vehemently

contends that the prosecution case cannot be believed at all since

there are no independent witnesses who were examined to prove the

seizure of the contraband article from the accused. He also pointed

out that though PW1 was examined to prove the seizure of the

contraband articles from the appellant, he turned hostile and though

questions were put to him by the prosecution, nothing beneficial to

the prosecution were elicited. The learned counsel enthusiastically

canvassed that in such circumstances, the benefit of doubt, atleast,

must be given to the accused.

6. The learned Public Prosecutor on the other hand

argued that the case of the prosecution was clearly proved in the

instant case and that there was no basis for the contention of the

appellant that he should be given the benefit of doubt. CRL.A.No.297 OF 2007

7. I have considered the rival contentions. On

24.12.2004, the accused was alleged to have been apprehended by

the Excise Inspector and his team of officers, who were on patrol

duty. Even though PW1 turned hostile to the prosecution and denied

of having seen the seizure of arrack from the accused, the evidence

of official witnesses are convincingly clear that the accused was

apprehended along with the arrack. In spite of severe cross

examination, the official witnesses stood firm, regarding the seizure

of arrack from the accused. In the aforesaid circumstances, I am of

the view that the finding of the trial court that even though PW1 had

turned hostile, there was sufficient evidence to prove the seizure of

the contraband from the accused. PWs 2 and 3 have also clearly

spoken to about the manner in which the accused was found

possessing a can containing arrack and the manner in which the

accused was apprehended. I agree with the said conclusion arrived at

by the learned Sessions Judge.

8. It is seen from Ext.P6 forwarding note that the same

was prepared on 24.12.2004 with the sample seal of PW5 and it was

presented before the Judicial First Class Magistrate's Court, Tirur on

the same day itself. Though MO1 was returned for safe custody, the

sample was retained by the court and was forwarded to the Regional CRL.A.No.297 OF 2007

Chemical Examiners Laboratory later. Thus, no procedural infirmity

could be found out and the prosecution had clearly proved that the

sample taken from MO1 was sent for chemical analysis resulting in

Ext.P7 certificate. Ext.P7 states that the sample involved in the

offence showed the presence of Ethyl Alcohol having 23.68%

by volume. The Learned Sessions Judge after an elaborate

consideration of the entire materials and the evidence adduced in the

case concluded that the accused has committed the offence alleged

against him. After appreciating and considering the evidence

adduced in the case, I am of the view that the learned Sessions

Judge was justified in concluding that the accused is guilty of the

offence alleged.

9. The learned counsel for the appellant in the alternative

had argued that the sentence of imprisonment imposed upon the

accused is too harsh in the nature of the case that was alleged

against him. It was also pointed out that the incident occurred more

than 15 years ago and that the quantity involved was only minimal

and that after the incident involved in this case, there had been no

allegations of involvement of the appellant in a crime of any nature.

10. On an appreciation of the aforesaid submissions of

the learned counsel for the appellant, I am of the view that taking CRL.A.No.297 OF 2007

into reckoning the long passage of time and also taking note of the

fact that the appellant had already undergone incarceration from

24.12.2004 till 07.02.2005, a modification can be made to the

sentence imposed. The sentence of imprisonment imposed upon the

appellant shall therefore stand modified to the period already

undergone. The fine amount imposed by the learned Sessions Judge

being the minimum fine provided under law, the same is affirmed.

In the aforesaid circumstances, while confirming the

conviction of the appellant under Section 8(1) of the Abkari Act, the

sentence of imprisonment imposed by the learned Sessions Judge is

modified to the period already undergone. However, the sentence of

fine imposed and the default sentence imposed by the learned

Sessions Judge stands affirmed.

The appeal is allowed in part as above.

Sd/-

BECHU KURIAN THOMAS, JUDGE

RKM