Achu @ Achuthan vs State Of Kerala
2022 Latest Caselaw 7008 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT

        THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
 FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
                     CRL.A NO. 92 OF 2014
AGAINST THE JUDGMENT DATED 17.01.2014 IN S.C.NO.452/2012
     OF THE III ADDITIONAL DISTRICT COURT, PALAKKAD/
                 II ADDITIONAL MACT, PALAKKAD
 (CP 18/2012 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS,
                          PATTAMBI)
APPELLANT/ACCUSED:

            ACHU @ ACHUTHAN
            AGED 58 YEARS, S/O.KORAN,
            AMBALAPARAMBU HOUSE, KOZHIKKATTIRI DESOM,
            MUTHUTHALA VILLAGE, OTTAPALAM TALUK.
            BY ADV SRI.R.SREEHARI


RESPONDENT/COMPLAINANT:

            STATE OF KERALA
            REPRESENTED BY THE PUBLIC PROSECUTOR,
            HIGH COURTOF KERALA, ERNAKULAM,
            THROUGH EXCISE INSPECTOR, EXCISE RANGE,
            PATTAMBI, OTTAPALAM TALUK.

            SMT MAYA M.N - P.P
OTHER PRESENT:




     THIS    CRIMINAL   APPEAL   HAVING   COME   UP   FOR   FINAL
HEARING ON 14.06.2022, THE COURT ON 17.06.2022 DELIVERED
THE FOLLOWING:
                                 2
Crl.Appeal No.92 of 2014


                           JUDGMENT

This is an appeal under Section 374(2) of the Code of

Criminal Procedure, 1973. The appellant stands convicted for

an offence punishable under Section 8(2) of the Kerala Abkari

Act, 1077 and sentenced to undergo simple imprisonment for

a term of one year and to pay a fine of Rs.1,00,000/- with a

default sentence of simple imprisonment for a term of three

months.

2. The charge against the appellant was that at about

5.45 p.m. on 19.04.2011, he was found in possession of five

litres of arrack on the Muthuthala-Pattambi public road, at

Kozhikkattiri junction in Muthuthala village.

3. PW1 detected the offence, seized the contraband

from the appellant and initiated the case. PW2 was a

Preventive Officer, accompanying PW1 for the patrol duty and

assisted PW1 in detection of the offence and necessary follow

up. PW4 did the investigation and filed the report under

Section 50 of the Abkari Act before the Judicial Magistrate of

First Class, Pattambi, who committed the case to the Sessions

Crl.Appeal No.92 of 2014

Court, Palakkad. The case was eventually made over to the

Additional Sessions Court-III, Palakkad, where the trial has

taken place.

4. PWs.1 to 5 were examined and Exts.P1 to P9 were

marked. MO1 was identified as well. In the Section 313

examination, the appellant took the stand that he did not

involve in such an offence. No defence evidence was adduced.

5. The learned Sessions Judge considered the matter

in detail and found that the appellant had committed the

offence charged against him. The contention that for want of

independent evidence, oral testimonies of PWs.1 and 2 could

not be placed reliance on to find that the seizure of the

contraband from the possession of the appellant was proved,

was not accepted. The further contention of the appellant that

having PWs.3 and 5, who are attestors to Ext.P3 seizure

mahazar, turned hostile to the case of the prosecution and

denounced its case that in their presence only the seizure was

effected and the accused arrested, the charge inevitably has

to fail. It was further contended that PWs.3 and 5 admitted

Crl.Appeal No.92 of 2014

having signed Ext.P3, but stated in court that they signed it at

a different place and that improbabilizes the case of the

prosecution.

6. The above-said contentions were considered in

detail by the learned Sessions Judge. The principle laid down

by this Court in Abdul Rasheed v. State of Kerala [2008

(3) KLT 150], where it was held that the reason of

prosecution witnesses turning against it does not ipso facto

impeach the credibility of other evidence, which stands

scrutiny of the cross-examination, was relied on by the

learned Sessions Judge and held that the contention could not

be accepted. Whether want of independent evidence impedes

the court from acting upon the oral testimony of PWs.1 and 2,

was also considered in detail by the trial court. It is the trite

law that quality and not the quantity is the criteria. Whether

official witnesses or not, if their evidence inspires confidence

of the court, the same can be acted upon. There is no bar in

finding a fact to be proved on the basis of evidence of a single

witness in the light of the provisions of Section 134 of the

Crl.Appeal No.92 of 2014

Indian Evidence Act, 1872.

7. Here, PWs.1 and 2, without any intra or inter-

contradictions, stated in court regarding the arrest of the

accused, seizure of the contraband from his possession and

other steps taken to ensure due preparation of documents

and production of the accused and contraband in court. While

PW1, the Excise Inspector, Excise Range, Pattambi, and PW2,

the Preventive Officer, on patrol duty, saw the appellant

walking along the Muthuthala-Pattambi road carrying a plastic

container. He was waylaid and questioned. On finding that the

plastic jar with him contained arrack, they proceeded to arrest

him by preparing Ext.P1 arrest memo and Ext.P2 intimation

memo, and seized the contraband, after preparing

representative samples under Ext.P4.

8. The Apex Court in Karamjit Singh v. State

(Delhi Administration) [AIR 2003 SC 1311] held that,-

"The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied

Crl.Appeal No.92 of 2014

upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down."

9. In this case, there is nothing in evidence to show

that PW1 has in any way biased. Therefore, his evidence as

corroborated by the evidence of PW2 and the documentary

evidence can safely be relied on.

10. The learned counsel appearing for the appellant

raised a contention that the discrepancy occurred in the

direction along which PWs.1 and 2 were travelling at the time

of the detection makes their credibility at stake. This aspect

has also been considered by the learned Sessions Judge in

detail. The road there is indisputably in east-west direction.

When PWs.1 and 2 deposed in court that they were travelling

in east-west direction and the attending circumstances

sufficiently probabilize that version, the trial court cannot be

found fault with in turning down the said contention. There is

Crl.Appeal No.92 of 2014

no doubt in the case of the prosecution as pointed out by the

learned counsel.

11. As pointed out above, witnesses to Ext.P3, PWs.3

and 5 did not state in court subscribing to the said fact.

However, on detailed deliberations and appreciation of the

evidence on record, it can be seen that occurrence of the

incident as narrated by PWs.1 and 2 is satisfactorily proved.

12. Yet another contention raised by the learned

counsel appearing for the appellant is that there is a missing

link in the process of forwarding the sample to the Chemical

Examiners' laboratory, and therefore, the correctness of the

analysis report, Ext.P9 is not sure. The learned counsel

contends that the finding entered into by the trial court in that

regard is wrong. The incident had occurred on 19.04.2011. It

is seen that after the arrest of the accused and the seizure of

the contraband, PW1 registered the crime as per Ext.P4,

crime and occurrence report on the same day. Those

documents and the contraband, including sample, were

forwarded to the jurisdictional Magistrate on that day itself.

Crl.Appeal No.92 of 2014

The endorsement on the documents shows that the

contraband and the sample were directed to be produced on

the next day before the court. Ext.P6 property list would carry

the endorsement that the contraband and the sample were

received in court on 20.04.2011 itself. The incidents

transpired thereafter for sending the sample to the chemical

examiners' laboratory and get the report were taken place in

the court. The learned Sessions Judge, after verifying all the

records and evidence entered a finding that the sample of the

contraband produced in the court along with Ext.P6 property

list was in the custody of the court till it was sent to the

Chemical Examiner. In the light of the said finding, which are

supported by the documents, the contention of the learned

counsel is not able to be accepted. From the evidence on

record, it can well rule out any possibility of tampering with

the sample prepared by PW1 at the place of occurrence and

ultimately examined by the Chemical Examiner resulting in

the issuance of Ext.P9 report. It is noted in Ext.P9 that the

sample was received intact and the seal on it was tallied with

Crl.Appeal No.92 of 2014

the samples seal provided. In the light of the said evidence, I

do not find any reason to find fault with the findings entered

into by the Sessions Judge, so as to convict the appellant for

the offence under Section 8(1) read with (2) of the Abkari Act.

13. It is proved beyond doubt that the appellant was in

possession of 5 litres of arrack, which is prohibited under

Section 8(1) of the Abkari Act. His conviction is therefore legal

and sustainable. I find no reason to interfere with the

conviction entered into by the learned Sessions Judge.

14. The appellant was sentenced to undergo simple

imprisonment for a period of one year and also to pay a fine

of Rs.1 lakh. An offence under Section 8(2) of the Abkari Act

is punishable with imprisonment for a term of 10 years and a

minimum fine of Rs.1 lakh. Having considered the matter in

detail and hearing the appellant, I find no reason to say that

the sentence imposed on the appellant is harsh or

disproportionate.

15. Hence, the appeal is dismissed by confirming the

conviction and sentence as per the impugned judgment dated

Crl.Appeal No.92 of 2014

17.01.2014 in S.C.No.452 of 2012 of the Additional Sessions

Court-III, Palakkad. The appellant shall surrender before the

Additional Sessions Court-III, Palakkad for the execution of

the sentence on or before 18.07.2022.

Sd/-

P.G. AJITHKUMAR, JUDGE

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