Kerala High Court
Venu vs State Of Kerala on 4 January, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 4TH DAY OF JANUARY 2024 / 14TH POUSHA, 1945
CRL.A NO. 1000 OF 2007
AGAINST THE JUDGMENT OF CONVICTION AND SENTENCE IN
S.C.NO.1220/2001 ON THE FILE OF THE ADDITIONAL SESSIONS
JUDGE FOR THE TRIAL OF THE ABKARI ACT CASES,NEYYATTINKARA
DATED 04.05.2007
APPELLANT/ACCUSED:
VENU
S/O.RAKHAVAN, KAVUMULATH VEEDU, KARUMAM,
THIRUVANANTHAPURAM
BY ADVS.
SASTHAMANGALAM S. AJITHKUMAR
RENJITH B.MARAR
PRABHU VIJAYAKUMAR
LAKSHMI.N.KAIMAL
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM
OTHER PRESENT:
SMT.SEENA C - PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION
ON 04.01.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2
Crl.Appeal No.1000 of 2007
P.G. AJITHKUMAR, J.
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Crl.Appeal No.1000 of 2007
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Dated this the 4th day of January, 2024
JUDGMENT
The appellant stands convicted and sentenced for an
offence punishable under Section 58 of the Abkari Act, 1077.
He was sentenced to undergo rigorous imprisonment for a
period of two years and to pay a fine of Rs.1,00,000/- with a
default sentence of rigorous imprisonment for a period of
three months. The Additional Sessions Judge for the trial of
Abkari Act Cases, Neyyatinkara tried the appellant on a charge
under Section 58 of the Abkari Act and convicted and
sentenced as per the judgment dated 04.05.2007. The
appellant in this appeal filed under Section 374(2) of the
Code, challenges correctness and legality of the said
judgment.
2. Heard the learned counsel for the appellant and the
learned Public Prosecutor.
3. The charge against the appellant is the following:
At about 7.30 a.m on 23.04.1998, while PW4, the Excise
Inspector, Thiruvananthapuram Excise Range along with his
colleagues was on duty found the appellant walking along
Karumeth - Kannukalichal road, near Karumam Desom. He
was carrying a black jerrycan. On suspicion, the Excise party
intercepted and examined the container. It contained 5 liters
of arrack. Therefore the contraband was seized and the
appellant was arrested. Eventually, after investigation a final
report was filed.
4. At the trial, PWs 1 to 6 were examined and Exts.P1
to P7 were marked. MO1 was identified as well. Thereafter,
the appellant was examined under Section 313(1)(b) of the
Code. He denied all the incriminating circumstances appeared
in evidence. He took up a plea that he was falsely implicated
in the case after arresting him while he was sleeping in his
room. DWs 1 to 3 were examined and got marked Ext.D1 on
his side. The court below after considering the aforesaid
evidence, found the appellant guilty.
5. The learned counsel appearing for the appellant
would submit that the foisting of the case is clear from the
evidence let in by the prosecution, especially when none of
the independent witnesses to the arrest and seizure supported
the prosecution. Further it is submitted that the evidence is
insufficient to show that the sample examined in this case is
the one drawn from the contraband seized from the
possession of the appellant.
6. The learned Public Prosecutor on the other hand
would submit that as reflected from the evidence of PW5, the
sample was drawn by that witness under the supervision of
the Judicial Magistrate and when such a sample was sent for
examination from the court itself, no irregularity or doubt
could be cast about the report of analysis. It is further
submitted that the forwarding note was produced by DW2,
who was summoned and examined at the instance of the
appellant and that would show the sample was sent to the
laboratory properly. Ext.P6 carries endorsement regarding
receipt of the samples in the laboratory in a tamper free
condition which corroborates other evidence. Accordingly, the
learned Public Prosecutor would submit that the evidence is
sufficient to establish that the contraband seized from the
possession of the appellant was arrack. It is also submitted
that the evidence of PWs 3 and 4 is enough to prove the
possession of the contraband by the appellant.
7. PW4, an Inspector of Excise is the detecting officer
and PW3, a Preventive Officer accompanied PW4. Both of
them deposed before the court regarding the arrest of the
accused and seizure of the contraband from his possession.
Ext.P1 is the Mahazar prepared by PW4 on the arrest of the
accused and seizure of the contraband from his possession. It
carries the signature of the accused as well as witnesses, who
are PWs 1 and 2. The oral evidence tendered by PWs 3 and 4
is in terms of the description in Ext.P1. The said
contemporaneous document gives sufficient support to the
oral testimonies of PWs 3 and 4.
8. PWs 1 and 2 admitted their signatures in Ext.P1.
While PW1 stated that he did not see the arrest of the accused
or seizure of the contraband, PW2 who is the son of PW1
stated that on knowing about the arrest of the appellant by
the officials, he reached the place of occurrence. He was then
asked to sign the Mahazar. He identified the signature in
Ext.P1. However, he stated in court that he did not see the
seizure of any contraband from the possession of the
appellant and thereby he also turned hostile to the
prosecution. Although PWs 1 and 2 failed to support the case
of the prosecution, their evidence is that they signed Ext.P1 at
the place of occurrence. That gives support to the case of the
prosecution.
9. In Tahir v. State (Delhi), (1996) 3 SCC 338,
while dealing with a similar question, the Apex Court stated:
"Where the evidence of the police officials, after careful
scrutiny, inspires confidence and is found to be
trustworthy and reliable, it can form basis of conviction
and the absence of some independent witness of the
locality to lend corroboration to their evidence, does not
in any way affect the creditworthiness of the prosecution
case."
10. 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
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."
11. In Baldev Singh v. State Of Haryana [(2015)
17 SCC 554] the Apex Court reiterated that view. As stated,
evidence of PWs.3 and 4 stand unimpeached despite detailed
cross examination. Ext.P1 renders necessary support to their
oral evidence. Even in the absence of any independent
evidence to support, evidence of PWs. 3 and 4, in the light of
the law laid down by the Apex Court in the aforesaid decisions
can be believed in order to find that MO1 which contained 5
litres of contraband was seized from the possession of the
appellant at about 7.30 p.m on 23.04.1998.
12. PW5 is the property clerk working in the Judicial
Magistrate of the First Class, Neyyantinkara at the relevant
time. She deposed before the court that on production of the
contraband on 23.04.1998, the day on which the seizure was
effected, was verified with reference to the property list and
the Mahazar. The seal and the signatures found on the label of
MO1 tallied with the property list and the Mahazar.
Accordingly it was received. She further deposed that as
instructed by the learned Magistrate, she drew samples from
the contraband and after sealing the same, it was forwarded
to the Chemical Examiners' Laboratory.
13. Ext.P6 is the report of analysis. The learned counsel
for the appellant challenges legality of sending such a sample
especially in the absence of production of the forwarding note
by the prosecution. At the instance of the appellant, DWs 1
and 2 were examined. They are the officials from the Chemical
Examiners' Laboratory. DW1 stated that it was she who
examined the sample and issued Ext.P6 report. It is true that
the methodology followed for chemical examination is not
stated in the certificate. But she asserted that the sample was
duly examined and in her examination, the sample was found
contained Ethyl Alcohol. DW2 produced Ext.D1 before the
court. She was not cross examined in the light of his
statement that he was not competent to state anything
regarding the correctness of Ext.D1 and Ext.P6. However, the
documents produced by him are quite relevant to the matter
in issue. It contains a copy of the forwarding note, as per
which sample was sent for chemical examination. From the
aforesaid evidence, it is sufficiently proved that the sample
examined in this case contained 24.24 % by volume of Ethyl
Alcohol. The said fact proved beyond doubt that the
contraband seen from the possession of the appellant was
arrack. DW1 is the wife of the appellant. She deposed that her
husband was arrested on the date of occurrence from their
house and not as alleged by the prosecution. DW1 voluntarily
deposed before the court a few facts which are totally against
the evidence tendered by the prosecution through PWs 3 and
4. When it is found that PWs 3 and 4 are credible and
trustworthy, the oral testimony of DW1, who is none other
than the wife of the appellant, tendered at the stage of the
defence evidence cannot be acted upon to discard evidence of
the said prosecution witnesses.
14. In the circumstances, I am of the view that the
prosecution succeeded in proving beyond doubt that the
appellant possessed 5 litres of arrack as alleged in the charge.
The findings of the court below in that regard are devoid of
any infirmity. Hence conviction of the appellant is confirmed.
15. The appellant was sentenced to undergo rigorous
imprisonment for a period of two years and to pay a fine of
Rs.1,00,000/-. The learned counsel for the appellant would
submit that the appellant had not involved in any other
criminal offence, and he has a wife and children. Now he is 57
years old. The conviction was rendered on 04.05.2007.
Considering the long period that lapsed after the incident, and
also the other circumstances mentioned above, I am of the
view that the appellant deserves a lenient view in the matter
of sentencing.
Accordingly the sentence imposed on the appellant is
modified. The appellant is sentenced to undergo rigorous
imprisonment for a period of six months and to pay a fine of
Rs.1,00,000/- (Rupees One lakh only). In default of payment
of fine, the appellant has to undergo a further period of one
month. Set off under Section 428 of the Code is allowed.
Sd/-
P.G. AJITHKUMAR
JUDGE
PV
