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2017 Supreme(Ker) 432
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P. UBAID, J.
DIVAKARAN S/O RARICHAN – Appellant
Versus
STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA – Respondent
CRL. Appeal No. 1454 of 2013
Decided On : 16-03-2017
For the Appellants : SRI. R. SUDHISH, SMT. M. MANJU & SRI. K.R. RANJITH.
For the Respondent: SRI. C.S. HRITHWIK.
Competent evidence and proof beyond reasonable doubt are essential in upholding convictions under the Kerala Abkari Act.
Headnote:
Kerala Abkari Act - Conviction under Section 8(2) - Summary of Acts and Sections: The court discussed the process of detection, investigation, and submission of the final report in court under the Kerala Abkari Act. It emphasized the competence of the officers involved in the various functions under the Act and the importance of proving the case on facts beyond any reasonable doubt.
Fact of the Case:
The appellant challenged the conviction and sentence under Section 8(2) of the Kerala Abkari Act. The prosecution case involved the detection of arrack in the appellant's possession at his house, leading to his arrest and subsequent trial.
Finding of the Court:
The court found no scope for interference in the case and upheld the appellant's conviction under Section 8(2) of the Act. It also confirmed the process of detection, investigation, and submission of the final report in court as legal and competent.
Issues: The issues involved the appellant's plea of not guilty, the process of detection and investigation, and the ownership of the house where the arrack was found.
Ratio Decidendi: The court's decision was based on the competent evidence provided by the prosecution, including the process of detection and investigation, and the absence of any illegality or infirmity in the proceedings.
Final Decision: The appellant's conviction under Section 8(2) of the Kerala Abkari Act was confirmed, and the jail sentence was reduced to simple imprisonment for ten months, with the default sentence for the fine amount reduced to simple imprisonment for two months.
P. UBAID, J.
1. The appellant herein challenges the conviction and sentence against him under Section 8(2) of the Kerala Abkari Act (for short "the Act") in S.C. No. 642/2011 of the Court of Session, Kozhikode. The prosecution case is that when the excise party led by the Circle Inspector of Excise, Kozhikode came near the house of the appellant as part of routine patrol on the basis of secret reliable information, the accused was found possessing arrack in an aluminum vessel at the courtyard of his house at about 7.15 am on 30.10.2008. Though search was conducted at the house, nothing else could be seized by the excise party. The arrack contained in the aluminum vessel was seized as per a mahazar, a search list was also prepared at the spot of detection, and the accused was arrested on the spot. The accused and the properties were brought at the Excise Range Office, Thamarassery, where the Excise Inspector of the Kunnamangalam Excise Range in charge of the Thamarassery Range, registered a crime and occurrence report. The Excise Inspector of the Thamarassery Range conducted investigation and submitted final report in the court of the learned Judicial First Class Magistrate I, Thamarassery under Section 8(2) of the Act. After complying with the procedural formalities the learned Magistrate committed the case to the Court of Session, from where it was made over to the learned Additional Sessions Judge (Ad Hoc) II, Kozhikode for trial and disposal.
2. The accused appeared before the trial court and pleaded not guilty to the charge framed against him under Section 8(2) of the Act. The prosecution examined seven witnesses in the trial court including the detecting officer, and proved Exts.P1 to P9 documents. MO1 and MO2 properties were also identified during trial. When examined under Section 313 Cr.P.C. the accused denied the incriminating circumstances and projected a defence that his house was not in fact searched by the excise party, and nothing was in fact seized from his possession, as the prosecution would allege. He also examined his wife in defence as DW1 and proved his ration card as Ext.D1. On an appreciation of the evidence, the trial court found the accused guilty under Section 8(2) of the Act. On conviction he was sentenced to undergo simple imprisonment for three years and to pay a fine of Rs. 1 lakh by judgment dated 12.6.2013. Aggrieved by the said judgment of conviction, the accused has come up in appeal.
3. On hearing both sides, and on a perusal of the materials including the defence evidence adduced by the accused, I find no scope or reason for interference in this case in appeal. I find that the accused was rightly convicted by the trial court under Section 8(2) of the Act.
4. PW-1 is the Excise Circle Inspector who detected the offence, PW-2 is the Excise Guard who assisted the Circle Inspector in the process of detection, PW-5 is the Excise Inspector who registered Ext.P5 crime and occurrence report and PW-7 is the Excise Inspector who conducted investigation and submitted final report in court. PW-6 is only the Special Village Officer who prepared the Ext.P8 scene plan. PW-3 and PW-4 are the two independent witnesses examined by the prosecution. They turned hostile during trial. However, they identified their signature in the mahazar and the search list.
5. PW-1 has given definite evidence proving the process of detection in this case. He was the Excise Circle Inspector of Kozhikode, and the detection was made within his circle. His evidence is that while he was doing patrol within his circle he got secret reliable information about the accused. Immediately he prepared a search memo and sent it to court, and proceeded for search at the house of the accused. The house was located by the other members of the party. They stopped the vehicle at a distance of about 200 meters, and came behind the house at a distance of about 10 meters. Then they saw the accused immediately going to the house and coming out
