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ANJILLATH IBRAHIM versus S.H.O. HOSDURG POLICE STATION

High Court of Kerala

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ANJILLATH IBRAHIM v. S.H.O. HOSDURG POLICE STATION - Crl Rev Pet No. 2349 of 2006 [2006] RD-KL 167 (11 July 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 2349 of 2006()

1. ANJILLATH IBRAHIM, AGED 32 YEARS,
... Petitioner

Vs

1. S.H.O. HOSDURG POLICE STATION,
... Respondent

For Petitioner :SRI.M.SANTHOSHKUMAR

For Respondent : No Appearance

The Hon'ble MR. Justice R.BASANT

Dated :11/07/2006

O R D E R

R. BASANT, J.


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Crl.R.P.No. 2349 of 2006
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Dated this the 11th day of July, 2006

O R D E R

This revision petition is directed against the concurrent verdict of guilty, conviction and sentence in a prosecution under Section 55 (a) of the Kerala Abkari Act.

2. The prosecution alleged that 47 bottles of Chancellor Whisky and 88 bottles of A.J. Fine whisky, each containing 180 ml. in two hard board cartons were seized from the possession of the petitioner herein. The petitioner, who did not have any document to prove the licit possession of the same, was alleged to have committed the offence punishable under Section 55(a) of the Abkari Act. The alleged seizure was effected from the premises of Kanhangad Railway Station at about 1.50 p.m. on 22.8.1998.

3. The petitioner/accused pleaded not guilty and thereupon PWs 1 to 6 were examined and Exts.P1 to P8 were marked. MO1 series and MO2 series were also marked. Crl.R.P.No. 2349 of 2006 2

4. The accused took up a defence of total denial. PW1 is a Village Officer, who prepared Ext.P1 site plan. PW2 is an attester to the scene mahazar. PW3 is an attester to Ext.P3 seizure mahazar under which the seizure was allegedly effected by PW4. He turned hostile to the prosecution. PW4 is the detecting officer, who allegedly detected the offence and effected the seizure. Ext.P4 is the F.I.R. Ext.P5 is the property list and Ext.P6 the forwarding note. PW5, Head Constable accompanied PW4 and spoke about the seizure. PW6 conducted the investigation. Ext.P7 is the report submitted by the Investigating Officer to court and Ext.P8 is the chemical analysis report obtained to confirm that the article seized was liquor. The accused, who took up a defence of total denial, did not adduce any defence evidence.

5. The courts below concurrently came to the conclusion that it was absolutely safe to place reliance on the oral evidence of PWs. 4 and 5, which is duly supported by the contemporaneous seizure mahazar, Ext.P3. Notwithstanding the hostility of PW3, the court below found that the PW3 has signed in Ext.P3 and the contents of Ext.P3 supported the oral evidence of PWs. 4 and 5. Accordingly they proceeded to pass the impugned Crl.R.P.No. 2349 of 2006 3 concurrent judgments.

6. Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner assails the oral evidence of PWs. 4 and

5. They are interested official witnesses. Their evidence is not supported by any ocular testimony. In these circumstances the courts below erred in accepting and acting upon the oral evidence of PWs. 4 and 5, it is urged. I am unable to find any substance in this contention. No personal animosity or motive is alleged against PWs. 4 and 5, it is conceded. PWs. 4 and 5 being police officials are and must certainly be interested in the outcome of the prosecution, which was initiated on the basis of the detection made by them. This interest is the interest which law expects them to have. Every public official is supposed to have an interest and commitment in the sublime discharge of the public duty. If PWs. 4 and 5 do have an interest to ensure successful prosecution of the guilty, it is only part of their duty to detect offence and to bring the offenders to book. Such duty cannot relegate them to the category of interested witnesses, reliance on whose testimony cannot be placed without ocular corroboration. Hostility of PW3 Crl.R.P.No. 2349 of 2006 4 does not persuade me to approach the evidence of PWs. 4 and 5 with any reservation. The criminal courts in India do often come across the sad spectacle of the witnesses turning hostile to the prosecution with impunity. Such hostility by itself cannot deliver any advantage to the indictee. The contemporaneous mahazar signed by PW3 supports the oral evidence of PWs. 4 and 5. Reliance is placed on some innocuous incongruities in the oral evidence of PWs. 4 and 5. Those, according to me, are not sufficient at this third tier of litigation to persuade this court to interfere with the concurrent finding of fact rendered by the courts below that safe reliance can be placed on the oral evidence of PWs. 4 and 5.

7. The counsel contends that there is 9 days delay in the contraband article reaching the court under Ext.P5 property list. It is further submitted that the samples have not been taken from all the 135 bottles of liquor seized. These are not according to me sufficient to generate any reasonable doubt in favour of the accused or against the prosecution case.

8. It follows from the above discussions that the impugned verdict of guilty, conviction and sentence do not warrant interference. The challenge fails. Crl.R.P.No. 2349 of 2006 5

9. Finally the learned counsel for the petitioner submits that the sentence imposed is excessive. The petitioner is a young person. He has only recently got married. Leniency may be shown on the question of sentence. The courts below have imposed only the minimum mandatory sentence of fine. There is no minimum mandatory sentence of imprisonment. The courts below have imposed R.I. for a period of one year. In the facts and circumstances of this case, I am satisfied that substantive sentence of imprisonment can be reduced to R.I. for six months, considering all the relevant inputs.

10. In the result:

(a) This revision petition is allowed in part.

(b) The impugned verdict of guilty and conviction of the petitioner under Section 55(a) of the Abkari Act are upheld. ) But the sentence imposed is modified and reduced. The substantive sentence of imprisonment alone is reduced to R.I. for six months. The sentence imposed is upheld in all other respects.

8. The petitioner shall appear before the learned Magistrate on 16.8.2006 to serve the modified sentence hereby imposed. Crl.R.P.No. 2349 of 2006 6 (R. BASANT) Judge tm


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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