Shaju vs State Of Kerala
2021 Latest Caselaw 22829 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 23RD DAY OF NOVEMBER 2021/ 2ND AGRAHAYANA, 1943
                   CRL.A NO. 536 OF 2007
 AGAINST THE JUDGMENT IN SC 362/2005 OF ADDITIONAL DISTRICT
          COURT, FAST TRACK (ADHOC-1), KOZHIKODE
APPELLANT/1ST ACCUSED:

         RINEETH, S/O SREEDHARAN,
         MANAKKARA HOUSE, KOLAYITHAZHAM,, KUNNAMANGALAM
         AMSOM, KARANTHUR DESOM,, KOZHIKODE TALUK.

         BY ADV SRI.T.G.RAJENDRAN



RESPONDENTS/COMPLAINANT & STATE:

    1    THE EXCISE INSPECTOR,
         KUNNAMANGALAM RANGE.

    2    STATE OF KERALA REP. BY
         PUBLIC PROSECUTOR,, HIGH COURT OF KERALA,,
         ERNAKULAM.

         SRI SANAL P RAJ,PP



     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD       ON
19.11.2021,   ALONG  WITH   CRL.A.756/2007, THE COURT     ON
23.11.2021 DELIVERED THE FOLLOWING:
 Crl.Appeal Nos.536 & 756/2007

                                -:2:-



           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
         THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 23RD DAY OF NOVEMBER 2021/2ND AGRAHAYANA, 1943
                      CRL.A NO. 756 OF 2007
 AGAINST THE JUDGMENT IN SC 362/2005 OF ADDITIONAL DISTRICT
           COURT, FAST TRACK (ADHOC-1), KOZHIKODE
APPELLANT/ACCUSED NO.2:

           SHAJU, S/O VELAYUDHAN, AGED 33 YEARS,
           RESIDING AT MOOTHTTUMANNIL HOUSE, KUNNAMANGALAM,
           AMSOM, KARANTHUR DESOM, KOZHIKODE TALUK.

           BY ADVS.
           SRI.C.S.MANU
           SRI.S.K.PREMRAJ



RESPONDENT/COMPLAINANT:

           STATE OF KERALA
           REPRESENTED BY THE EXCISE INSPECTOR,,
           KUNNAMANGALAM EXCISE RANGE, KUNNAMANGALAM AMSOM,,
           KARANTHUR TALUK NOTICE TO WHOM MAY BE SERVED
           UPON, THE PUBLIC PROSECUTOR, HIGH COURT OF
           KERALA,, ERNAKULAM.

           BY ADV.SANAL P.RAJ, PP



     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD           ON
19.11.2021, ALONG WITH CRL.A.536/2007, THE COURT              ON
23.11.2021 DELIVERED THE FOLLOWING:
 Crl.Appeal Nos.536 & 756/2007

                                  -:3:-




                             J U D G M E N T

Dated this the 23rd day of November, 2021

These appeals are filed by the accused Nos.1 and 2 in SC

No.362/2005 on the file of the Additional Sessions Court, Fast

Track (Adhoc-1), Kozhikode against the judgment dated

15/3/2007 convicting them u/s 8(1) and (2) of the Abkari Act.

2. The prosecution case in short is that on 13/1/2003 at

8.30 p.m, the accused Nos.1 and 2 were found in possession of

15 litres of arrack in two black plastic cans in the autorickshaw

bearing Reg.No.KL-11G 2095 in contravention of the Abkari Act

and the Rules and thereby committed the offence.

3. On receipt of summons, both accused appeared at the

Court below. After hearing both sides, the Court below framed

charge against the accused under Sections 8(1), (2) and 67B of

the Abkari Act. The charge was read over and explained to the

accused who pleaded not guilty. The prosecution examined PWs 1

to 7 and marked Exts.P1 to P11. MO1 and MO2 were identified.

DW1 and DW2 were examined and Exts.D1 and D2 were marked Crl.Appeal Nos.536 & 756/2007

on the side of the defence. After trial, the Court below found both

the accused guilty u/s 8(1) and (2) of the Abkari Act and

convicted them for the said offence. The accused were sentenced

to undergo rigorous imprisonment for a period of two years and

to pay a fine of `1,00,000/- each, in default to suffer rigorous

imprisonment for 6 months each. Challenging the conviction and

sentence, the 1st accused preferred Crl.Appeal No.536/2007 and

the 2nd accused preferred Crl.Appeal No.756/2007.

4. I have heard Sri T.G.Rajendran, the learned counsel

for the 1st accused, Sri.S.K.Premraj, the learned counsel for the

2nd accused and Sri.Sanal P.Raj, the learned Public Prosecutor.

5. The learned counsel appearing for the appellants

impeached the findings of the Court below and appreciation of

evidence and resultant finding as to the guilt. The learned

counsel for the 1st accused submitted that PW1 who detected the

offence was not an authorised officer and hence, the entire

detection and investigation is vitiated. On merits, the learned

counsel submitted that the first accused is only an auto driver

and admittedly the seizure was from the possession of the 2 nd

accused who was sitting on the passenger seat and hence, Crl.Appeal Nos.536 & 756/2007

conscious possession cannot be attributed as against the first

accused. The learned counsel for the 2 nd accused submitted that

there is undue delay of 1½ years in completing the investigation

and filing the final report. The learned counsel further submitted

that the contraband found in the autorickshaw was in fact carried

by the first accused, and the second accused, who was only a

passenger, has no connection whatsoever with the same. The

counsel also submitted that the thondi clerk of the Court was not

examined to prove that contraband was forwarded from the Court

for chemical analysis.

6. PW1 is the detecting officer. He was the preventive

officer at Excise Intelligence Squad, Kozhikode. According to the

learned counsel for the first accused, he was not authorised or

empowered to detect or investigate the abkari offence. I cannot

subscribe to the said argument. As per SRO No.361/2009, the

officers mentioned in column 1 of the Schedule therein was

authorized to exercise and perform the duties specified in that

column within jurisdiction over the area specified against each in

column 2 of the said Schedule. As per column 14 of the

Schedule, Preventive Officers of the Excise Department on duty Crl.Appeal Nos.536 & 756/2007

within the Kerala State has been authorised to exercise all powers

conferred and to perform all duties assigned on Abkari Officers

under the sections mentioned therein within their respective

jurisdiction. PW1 was a Preventive Officer of the Excise

department. Thus, he is an authorized officer. That apart, the

competency of PW1 was not challenged by the accused at the

Court below. In so far as the argument raised by the learned

counsel for the second accused regarding the delay in completing

the investigation, the counsel could not point out that any

prejudice has been caused to the accused on account of the said

delay.

7. PW1, the detecting officer, and PW2, the excise guard

who accompanied PW1 gave consistent evidence regarding the

arrest of the accused, search and seizure of the contraband

substance from them and its sampling. Their evidence would

show that on 13/1/2003, at about 8.30 p.m, PW1 and PW2 were

coming in an autorickshaw bearing Regn.No.KL-11G 2095 to

Kunnamangalam-Chethukadavu road. The accused No.1 was

driving the autorickshaw and the accused No.2 was sitting in the

passenger seat. When they reached in front of A.K.V. Driving Crl.Appeal Nos.536 & 756/2007

School, PW1 and PW2 stopped the autorickshaw and on

inspection they could find two black plastic cans having a

capacity of 10 litres and 5 litres respectively kept in between the

legs of accused No.2. PW1 seized it and arrested the accused.

Thereafter, the sample was drawn from it and it was properly

packed, sealed and labelled. The search, seizure and arrest of the

accused were amply proved by the evidence of PW1 and PW2.

That apart, both accused admit the seizure of the contraband

substance from the back seat of the autorickshaw. In fact, they

accuse each other. The accused No.1 gave evidence as DW2 and

accused No.2 gave evidence as DW1. The case of accused No.1 is

that while he was driving the autorickshaw, the accused No.2

hired it and he was carrying with him two plastic cans (MO1 and

MO2). He further deposed that the accused No.2 stated that the

can contained coconut oil. He further deposed that the accused

No.2 kept it in the passenger seat on the back side of the

autorickshaw in between his legs. According to him, he had no

connection whatsoever with the contraband substance seized.

On the other hand, accused No.2 gave evidence that on

13/1/2003 at 7.00 p.m, in order to go to his house, he hired the Crl.Appeal Nos.536 & 756/2007

autorickshaw of the accused No.1 and when got into the

autorickshaw, he could notice two jerry cans (MO1 and MO2) on

the back seat of the autorickshaw. When asked, accused No.1

told him that it was oil meant for the temple. He also took the

plea that he has no connection whatsoever with the said

contraband substance seized. Both of them admitted that PW1

and PW2 intercepted them, seized MO1 and MO2, drew sample

from it and they were also arrested. Thus, in fact, the search and

seizure of the contraband substance as well as the arrest of the

accused were admitted by the accused.

8. Ext.P5 is the seizure mahazar. It contains sample seal.

The seizure was on 13/1/2003 at 8.30 p.m. Ext.P8 is the property

list. It would show that the seized contraband substance and

sample drawn from it were produced at the Court without delay

on the next day itself. Ext.P9 is the forwarding note. It would

show that on 14/1/2003 itself, the sample was forwarded for

chemical analysis. Ext.P9 contains the specimen seal and the

name of the excise guard through whom the sample was sent for

chemical analysis. Ext.P10 is the chemical analysis report. It

would show that the seals of the packet of the bottle were intact Crl.Appeal Nos.536 & 756/2007

and found tallied with the sample seal provided. It would further

show that sample received for analysis was clear and a colourless

liquid and that it contained 36.53% and 36.78% by volume of

ethyl alcohol.

9. The learned counsel for the second accused relying on

the latest decision of a learned Single Judge of this Court in

Sajeevan v. State of Kerala (2020 (6) KLT 53) has argued that

for constructive possession to become penal in nature, there

must be something more than mere deemed possession and for

the simple reason that the second accused happened to be a

passenger in the autorickshaw, it cannot be inferred that he was

in conscious possession of the contraband article seized from the

autorickshaw. I cannot subscribe to the said argument. The

evidence on record would show that the second accused was in

actual possession of the contraband substance seized. PW1

deposed that the MO1 and MO2 cans were found kept on the

back side of the autorickshaw in between the legs of accused

No.2. He added that in fact, MO1 and MO2 were kept concealed

in between the legs of the second accused. Both PW1 and PW2

deposed that on seeing them, accused No.2 sitting on the back Crl.Appeal Nos.536 & 756/2007

seat got perplexed. The accused No.1 was wearing uniform. Both

accused admitted that accused No.2 hired the autorickshaw of

the accused No.1. The case set up by the accused No.2 that when

he got into the autorickshaw, MO1 and MO2 were already there in

the back side cannot be swallowed without a pinch of salt. When

a passenger enters into the autorickshaw with plastic can,

normally the driver would not check the same. An auto driver

cannot suspect that a passenger would carry contraband

substance with him. There is no charge for conspiracy u/s 34 of

IPC. In these circumstances, I am of the view that for the simple

reason that the accused No.1 happened to be the driver of the

autorickshaw in which accused No.2 carried the contraband

substance, it cannot be inferred that he was having

consciousness or knowledge of the contraband seized. Hence, the

conviction passed by the Court below as against accused No.1

cannot be sustained. The prosecution has established beyond

reasonable doubt that the accused No.2 was in conscious

possession of the contraband seized from the autorickshaw.

Hence, the conviction passed by the Court below against him is

only to be confirmed. However considering the facts and Crl.Appeal Nos.536 & 756/2007

circumstances of the case, I am of the view that substantive

sentence imposed by the court below can be reduced to one

year.

10. In the light of the above findings, the conviction and

sentence passed by the Court below against the first accused is

set aside. He is found not guilty of the offence charged against

him and accordingly, he is acquitted. The conviction passed by

the court below against the second accused is confirmed. The

substantive sentence passed against him is reduced to rigorous

imprisonment for one year with no change in fine and default

sentence.

The appeals are disposed of as above.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE Rp