Kunjumon @ Varghese vs State Of Kerala
2021 Latest Caselaw 872 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

               THE HONOURABLE MR. JUSTICE K.HARIPAL

     MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942

                      CRL.A.No.1570 OF 2006

AGAINST THE JUDGMENT IN SC 234/2005 DATED 17-07-2006 OF ADDITIONAL
              SESSIONS COURT (ADHOC)-II, THODUPUZHA

    CP 33/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,ADIMALI


APPELLANT/ACCUSED:

             KUNJUMON @ VARGHESE,
             AGED 33 YEARS,
             S/O THOMAS,
             VEZHAMPUTHOTTATHIL HOUSE,
             ILLICITY BHAGOM, KURANGUPARA KARA,
             BYSONVALLY VILLAGE, UDUMBANCHOLA TALUK,
             IDUKKI DISTRICT.

             BY ADV. SRI.PADAYATTEE YELDO

RESPONDENT/COMPLAINANT:

             STATE OF KERALA,
             REPRESENTED BY THE SUB INSPECTOR OF POLICE,
             RAJAKKAD, POLICE STATION,
             THROUGH THE GOVERNMENT PLEADER,
             HIGH COURT OF KERALA, ERNAKULAM.

             BY REKHA C. NAIR, GOVERNMENT PLEADER

    THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-01-2021,

THE COURT ON 11-01-2021 DELIVERED THE FOLLOWING:
 Crl.Appeal No. 1570 of 2006          2

                              JUDGMENT

In this appeal preferred under Section 374(2) of the Code of

Criminal Procedure, hereinafter referred to as the 'Cr.P.C', the accused

who stands convicted in S.C.No. 234/2005 by the Additional Sessions

Judge (Adhoc) - II, Thodupuzha challenges the legality and

correctness of the conviction and sentence imposed on him. That case

was taken on file on a final report laid by Sub Inspector of Police,

Rajakkadu Police Station in Crime No. 14/2003 of that police station.

The prosecution allegation is that on 17.01.2003 at 4.45 p.m., while

the Sub Inspector and party were on patrol duty, when they reached a

place by name Vilangupara, the Sub Inspector received reliable

information about illegal sale of liquor in the provision store in Illicity,

run by the appellant. Thus after preparing a search list and sending it

to the court, shop No. VII/197 of Bisonvalley Panchayat, run by the

appellant was searched and he was found in possession of 2.150 litres

of Indian made foreign liquor which was kept there for the purpose of

sale. The police seized the contraband in the presence of independent

witnesses under a mahazar; the appellant was arrested and taken to the

police station and Crime No. 14/2003 was registered under Section

55(a) and (h) of the Abkari Act. Samples were taken from two bottles.

The appellant was produced before the court on the following day and

was remanded to judicial custody.

2. After investigation a charge sheet was laid before the

Judicial First Class Magistrate, Adimaly, alleging offences punishable

under Section 55(a) and (h) of the Abkari Act. The Magistrate, after

completing the procedural formalities committed the case to the

Sessions Court, Thodupuzha from where the matter was made over to

the trial court.

3. The appellant was defended by a counsel of his choice.

After hearing counsel on both sides, when the charge alleging offence

punishable under Section 55(a) of the Abkari Act was framed, read

over and explained in Malayalam, he pleaded not guilty. He was on

bail.

4. Prosecution examined seven witnesses as PWs 1 to 7.

Exts.P1 to P11 were marked. The material objects were identified and

marked as MOs 1 to 5. After closing the prosecution evidence, when

examined under Section 313(1)(b) of the Cr.P.C., he reiterated his

innocence and denied all the incriminating materials and statements

spoken against him. According to him, he has no connection with the

material objects. As it is not a case to be acquitted under Section 232

of the Cr.P.C., he was called upon to enter on his evidence in defence.

One witness, who is the younger brother of the appellant was

examined as DW1. After concluding evidence, and hearing counsel on

both sides, the learned Additional Sessions Judge repelled the plea of

the appellant and found him guilty of offence punishable under

Section 55(i) of the Abkari Act and sentenced to undergo rigorous

imprisonment for one year and also imposed a fine of Rs. 1,00,000/-,

in default to undergo rigorous imprisonment for three months. That

conviction and sentence are the subject matter of this appeal.

5. I have heard the learned counsel for the appellant and also

the learned Public Prosecutor representing the respondent State. The

entire records of the trial court were summoned and examined.

6. The conviction is largely based on the oral testimony of

PW7 and matters proved through documents relied on by the

prosecution. Even though PWs 1 and 3, attestors to the Ext.P1 seizure

mahazar had turned hostile to the prosecution and gave a statement

supporting the version of the defence which was put to the witnesses

and also through the oral testimony of DW1, the learned Sessions

Judge placed reliance on the version of PW7 and other materials. It

was also noticed that PWs 1 and 3 have rendered partial support since

they admitted having signed the Ext.P1 mahazar. The court

disbelieved the versions given by DW1 and that of matters spoken by

PWs 1 and 3 in cross examination to the effect that the appellant was

removed to the police station in the night of 17.01.2003 and that PWs

1 and 3 were made to sign Ext.P1 at the police station on 18.01.2003.

7. PWs 1 and 3 are the attestors to the Ext.P1 mahazar. The

definite case of the prosecution is that when PW7 Sub Inspector and

party had searched the said shop on 17.01.2003, at 4.45 p.m., the

appellant was in the shop, 2.150 litres of Indian made foreign liquor

was found kept beneath the table on the north eastern corner of the

shop room; the item was seized under Ext.P1 mahazar, sample was

taken at the spot itself from two bottles, the appellant was arrested and

removed to the police station and was produced before court on

18.01.2003. Both PWs 1 and 3 have admitted their signatures in the

Ext.P1 mahazar, but according to them they did not witness the police

seizing the contraband from the shop room. Both of them are

neighbours to the appellant. They wanted to say that they had seen the

police at the residence of the appellant in the night, police had taken

him from the residence and thereafter, both the witnesses were

summoned to the police station on 18.01.2003 and then were asked to

sign the document. An identical version was given by DW1, the

younger brother of the appellant also.

8. The appellant made a faint attempt that some liquor was

seized by the police in the night from behind the lean-to, behind his

shop, at that time he had gone home and that was how police went to

his house in search of him and then removed to the police station.

Such a version has been spoken to by PW2, who is running a tea shop

adjacent to the shop run by the appellant. According to him he had

seen the police removing some liquor from behind the shop, at that

time the appellant was not in the shop. PWs 1 to 3 are the independent

witnesses cited to prove the occurrence. Both PWs 1 and 3 are

neighbours to the appellant; PW2 is running a tea shop adjacent on the

west of the shop run by the appellant. In normal circumstances, it

cannot be expected that they would give a statement supporting the

prosecution that would run against the interest of the appellant. All of

them were declared hostile to the prosecution and were cross

examined by Public Prosecutor.

9. PW4 the owner of the building proved the Ext.P2 lease

agreement. In cross examination by defence counsel, the witness

deposed that the Ext.P2 was prepared on the direction of the police.

Even though this document is not an admissible one, much importance

cannot be given to the same. PW5 is an attestor to Ext. P3 mahazar.

PW6 is the Sub Inspector who conducted the investigation and laid the

charge sheet. He denied that the Ext. P2 was instantly created for the

purpose of the case.

10. All the same PW7 is Sub Inspector who detected the

crime, seized the contraband from the shop room, collected sample,

arrested the appellant and registered the crime gave a version in

support of the prosecution case. The learned Additional Sessions

Judge has believed his version. In fact his testimony stands unshaken

in cross examination. After reassessing the materials, I also do not find

any reason to strike a different note or disbelieve his testimony. He is

a responsible police officer. His definite case is that he had proceeded

to the shop room of the appellant on getting reliable information about

illegal vending of foreign liquor in the shop room run by the appellant.

No one has a case that he has any previous acquaintance with the

appellant. It was also not remotely suggested that PW7 was motivated

by any malafide, so that the appellant was inculpated in a false case.

11. Secondly, the remand report indicates that the appellant

was produced before court on the following day itself. He was

specifically asked to whether he has any complaint against officials;

he answered in the negative. If it was a case as wanted to make out

through PWs 1 to 3 and DW1, necessarily the appellant would have

related such a version to the Magistrate. From the fact that he had no

such complaint to be stated, at the earliest possible opportunity when

he was produced before court, it can safely be concluded that he had

no such case at that point of time. The necessary inference is that, such

a case has been invented in subsequent point of time on experimental

basis, to get out of criminal liability.

12. That means, the oral testimony of PW7, the partial support

given by PWs 1 and 3 and the supporting documents do suggest that

the appellant was found in possession of 2.150 litres of Indian made

foreign liquor from his shop room. The statement given by PW4

Santhosh, the owner of the building where the appellant is running the

shop and the Ext.P2 lease agreement suggests that the appellant is

running the shop. Here also, even though DW1 tried to apprise the

court that the shop is run by himself and the appellant jointly, no better

documents or circumstances could be brought out to belie the

prosecution version. That means, the only possible conclusion is that

the appellant had stored so much quantity of liquor in his shop room

for the purpose of sale. In that way, prosecution is justified in alleging

offence punishable under Section 55(i) of the Abkari Act.

13. The other materials like Ext.P5 certificate issued by the

Chemical Examiner has not been disputed. Even though it has come

out that the material objects seized from the possession of the

appellant on 17.01.2003 was produced only on 28.01.2003, PW7 has

asserted that till the time it was kept in his safe custody. Such a claim

has not been called in question.

14. After evaluating the materials including the oral testimony

of witnesses it can safely be concluded that the learned Additional

Sessions Judge has proceeded to convict the appellant based on

satisfactory materials. After re-visting the materials, there are no valid

reasons to take a different view. Thus the conviction entered upon by

the learned Judge is liable to be confirmed.

15. Regarding sentence, the learned counsel for the appellant

has submitted that from 2003 onwards the appellant is after the case,

that he is a first offender, but even the prosecution has no case that he

has any bad antecedents. Thus the counsel prayed for showing

maximum leniency in sentence. The learned Public Prosecutor has

also submitted that the appellant has no previous criminal history to

his credit. Considering this aspect and since the quantity of liquor is

only 2.150 litres, I am also inclined to take a lenient view. It seems

that maintaining the fine imposed on the appellant and also the default

sentence, punishment can be modified and limited to rigorous

imprisonment for 15 days. The period of custody already undergone

by him shall be set off under Section 428 of the Cr. P.C.

In the result, confirming the conviction, sentence is modified

into rigorous imprisonment for 15 days; fine and in default sentence

imposed by the trial court shall remain as such. With the above

modification, the appeal is disposed of.

Sd/-

K.HARIPAL JUDGE

DCS/08.01.2021

//True copy//

P.A. to Judge