Kerala High Court
Lakshmanan vs The State Of Kerala on 17 March, 2025
Criminal Appeal No.863 of 2008
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 17TH DAY OF MARCH 2025 / 26TH PHALGUNA, 1946
CRL.A NO. 863 OF 2008
AGAINST THE JUDGMENT DATED 17.04.2008 IN SC NO.78 OF
2007 ON THE FILE OF THE COURT OF THE ADDITIONAL SESSIONS
JUDGE, FAST TRACK COURT NO.III (ADHOC), MANJERI.
APPELLANT/ACCUSED:
LAKSHMANAN,
S/O.UNNIPANJU,
KOLAR VEEDU, OLAKARA,
THIROORANGADI TALUK,
MALAPPURAM DISTRICT.
BY ADV SRI.BABU S. NAIR
RESPONDENT/STATE:
THE STATE OF KERALA,
REPRESENTED BY THE EXCISE INSPECTOR,
PARAPPANANGADI EXCISE RANGE -
THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, KOCHI-31.
BY ADV.SRI.VIPIN NARAYAN, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
10.03.2025, THE COURT ON 17.03.2025 DELIVERED THE FOLLOWING:
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C.S.SUDHA, J.
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Criminal Appeal No.863 of 2008
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Dated this the 17th day of March 2025
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the
appellant, the sole accused in S.C.No.78 of 2007 on the file of the
Court of Session, Manjeri challenges the conviction entered and
sentence passed against him for the offence punishable under
Section 8(2) of the Kerala Abkari Act, 1 of 1077 (the Act).
2. The prosecution case is that on 28/01/2006 the accused
was found transporting 2.5 liters of illicit arrack in M.O.1 can.
Hence, the accused as per the final report/charge sheet is alleged to
have committed the offence punishable under Section 8(2) of the
Act.
3. Crime no.3/2006, Excise Range, Parappanangadi, that is,
Ext.P4 crime and occurrence report, was registered by PW1, Excise
Range Inspector, Parappanangadi. PW5, Excise Inspector,
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conducted the investigation and on completion of the investigation,
submitted the final report/charge sheet before the jurisdictional
magistrate alleging the commission of the offence punishable under
the aforementioned Section.
4. On appearance of the accused, the jurisdictional
magistrate after complying with all the necessary formalities
contemplated under Section 209 Cr.P.C., committed the case to the
Court of Session, Manjeri. The case was taken on file as S.C.No.78
of 2007 and thereafter made over to the Additional Sessions Judge,
Fast Track Court No.III (Adhoc), Manjeri for trial and disposal.
When the accused appeared before the trial court, a charge under
Section 8(1) of the Act was framed, read over and explained to the
accused to which he pleaded not guilty.
5. On behalf of the prosecution, PW1 to PW5 were
examined and Exts.P1 to P11 and M.O.1 were marked in support of
the case. After the close of the prosecution evidence, the accused
was questioned under Section 313(1)(b) Cr.P.C. with regard to the
incriminating circumstances appearing against him in the evidence
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of the prosecution. The accused denied all those circumstances and
maintained his innocence.
6. As the trial court did not find it a fit case to acquit
the accused under Section 232 Cr.P.C., he was asked to enter on his
defence and adduce evidence in support thereof. DW1 was
examined on behalf of the accused.
7. On consideration of the oral and documentary
evidence and after hearing both sides, the trial court by the
impugned judgment found the accused guilty of the offence
punishable under Section 8(2) of the Act and hence sentenced him
to undergo rigorous imprisonment for a period of one year and to a
fine of ₹1,00,000/- and in default to simple imprisonment for a
period of three months. Set off under Section 428 Cr.P.C. has been
allowed. Aggrieved, the accused has come up in appeal.
8. The only point that arises for consideration in this
appeal is whether the conviction entered and sentence passed
against the accused/appellant by the trial court are sustainable or
not.
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9. Heard both sides.
10. PW1, Excise Range Inspector, Parappanangadi,
deposed that on 28/01/2006 in the evening while he along with his
party were on patrol duty and when they reached near the house of
Athrappan Latheef situated by the side of the road leading from
Chinaangadi, Kollam to Kadappadi, they saw the accused coming
with M.O.1 can in his possession. The accused was intercepted and
in the presence of PW3 and PW4, M.O.1 can having a capacity of 5
liters was examined. The can contained a liquid which on
examination, that is, by testing and smelling was found to be arrack.
The can contained 2.5 liters of arrack. He arrested the accused and
seized M.O.1 can. From the arrack contained in M.O.1 can, 300ml
was drawn as sample in a bottle having a capacity of 375ml. The
sample bottle as well as the M.O.1 can containing the residue were
closed, labelled and sealed. The contraband article was seized as
per Ext.P3 seizure mahazar prepared by him. He returned to the
office along with the accused, the contemporaneous records and the
contraband articles and registered the crime, that is, Ext.P4 crime
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and occurrence report. The contraband articles were produced
before the court as per Ext.P5 property list. He also submitted a
forwarding note requesting the sample to be forwarded for chemical
examination and Ext.P6 is the copy of the same.
10.1. PW2, Preventive Officer, Excise Range,
Parappanangadi, deposed that he was in the team along with PW1.
PW2 supports the prosecution case.
10.2. PW3 and PW4, independent witnesses, admitted
their signatures in Ext.P3 mahazar as well as on the label seen on
M.O.1 can. However, they turned hostile and deposed that they had
neither seen the incident nor stated to the investigating officer that
they had seen the incident.
11. DW1 deposed that he is acquainted with the
accused and that one day he had seen the excise officials taking the
accused from Chinaangadi, Kollam. The accused had come to the
market for purchasing some articles. It was then that the excise
officials had arrived at the scene and taken the accused along with
them. In the cross-examination, DW1 deposed that he does not
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remember the date or year in which he had seen the excise officials
taking the accused along with them. He also deposed that he does
not know whether the accused was taken away in connection with
the present case or whether he had any other case(s) pending against
him. In the re-examination, DW1 deposed that he does not know
whether any other cases have been registered against the accused.
12. It is true that there is only the testimony of PW1
and PW2 to support the prosecution case as PW3 and PW4, the
independent witnesses, have turned hostile. Merely because the
independent witnesses have turned hostile is no reason to reject or
disbelieve the prosecution case if the remaining evidence on record
is credible and trustworthy. It is true that PW1 and PW2 are official
witnesses. Merely because they are official witnesses, their
testimony need not be disbelieved unless and until the accused is
able to bring out that they are deposing falsehood. Here, though
PW1 and PW2 were extensively cross-examined, nothing was
brought out to discredit their testimony. Therefore, I do not find any
reason to disbelieve their testimony.
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13. The testimony of DW1 to which I have already
referred to does not in any way help the accused in this case. On the
other hand, the evidence let in by the prosecution establishes the
prosecution case. PW1 has deposed that the contraband was seized
as per Ext.P3 mahazar and that after the contraband was seized,
necessary sample was drawn from the same and that MO.1 can
containing the residue as well as the sample bottle was closed,
sealed and labelled. The seizure mahazar contains the specimen
impression of the seal that is stated to have been affixed by PW1 on
the labels affixed on M.O.1 can as well as on the sample bottle.
This tallies with the specimen impression of the seal given in Ext.P6
forwarding note. Ext.P9 chemical report states that a sealed 375 ml
bottle containing 300 ml of colourless clear liquid alleged to be
arrack involved in crime no.3/06 of Parappanangadi Excise Range
was received for chemical analysis. The seals on the bottle were
found intact and tallied with the sample seals provided. As per the
report of the Assistant Chemical Examiner, ethyl alcohol was
detected in the sample and the sample contained 19.82% by volume
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of ethyl alcohol. The materials on record show that it was infact the
sample that was drawn at the scene of occurrence that had reached
the laboratory which was examined and Ext.P9 chemical report
issued. Therefore, the prosecution case stands established by the
materials on record.
14. Now coming to the sentence that has been
imposed on the accused. As stated earlier, the trial court has
sentenced the accused to rigorous imprisonment for a period of one
year and to a fine of ₹1,00,000/- and in default to simple
imprisonment for three months. It was submitted on behalf of the
appellant/accused that given the quantity of illicit arrack seized, a
lenient view may be taken and the sentence may be confined to the
period of about 30 days already undergone by the accused and the
fine that has been imposed by the trial court.
15. The incident in the case on hand took place on
28/01/2006. More than 19 years have elapsed. But lapse of several
years will not bring down the gravity of the offence committed.
However, in the facts and circumstances of the case and taking into
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account the quantity of the illicit arrack seized from the accused, the
interest of justice would be served by modifying the substantive
sentence of imprisonment to six months. The fine that has been
imposed by the trial court shall stand confirmed.
In the result, the appeal is partly allowed. The substantive
sentence of imprisonment imposed by the trial court is modified to
imprisonment for a period of six months. The fine imposed by the
trial court shall stand confirmed.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
ak
