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K. SHEKHARAN v. STATE - Crl Rev Pet No. 2385 of 2006 [2006] RD-KL 228 (14 July 2006)


Crl Rev Pet No. 2385 of 2006()

... Petitioner


... Respondent

For Petitioner :SRI.M.SASINDRAN

For Respondent : No Appearance

The Hon'ble MR. Justice R.BASANT

Dated :14/07/2006



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Crl.R.P.No. 2385 of 2006
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Dated this the 14th day of July, 2006


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 the petitioner was found to be in possession of 200 packets of arrack, each containing 100 ml. when the Excise Party intercepted him on the eastern side of the Nellikunnu Railway over bridge. The prosecution examined PWs. 1 to 4 and proved Exts.P1 to P7. MOs. 1 to 3 were also marked. PW1 is the Circle Inspector of Excise, who led the party which detected the crime. Ext. P1 is the arrest memo and Ext.P2 is the seizure mahazar. PW2 was an Excise official, who was with PW1 when the offence was allegedly detected. PW3 is the Investigating Officer, before whom the contraband article, the accused and the relevant documents were produced. PW4 is an attester to the seizure mahazar, Ext.P2. Crl.R.P.No. 2385 of 2006 2 He turned hostile to the prosecution. Exts. P3 and P4 are the crime and occurrence reports. Ext.P5 is the property list, Ext.P6 the forwarding note and Ext.P7 the chemical analyst's report confirming that the contraband article seized was liquor.

3. The accused took up a defence of total denial. The courts below concurrently came to the conclusion that all ingredients of the offence punishable under Section 55(a) of the Abkari Act have been established. Accordingly they proceeded to pass the impugned concurrent judgments.

4. Called upon to explain the nature of challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner submits that the courts below erred in accepting and acting upon the oral evidence of interested PWs. 1 and 2. It is further contended that there is incongruity in the evidence about the quantity of sample drawn by the Excise officials. At any rate, the benefit of doubt must have been conceded and leniency must have been shown on the question of sentence.

5. PWs. 1 and 2 are Excise officials. Are they interested? Certainly they are interested in the successful culmination of the prosecution for the Crl.R.P.No. 2385 of 2006 3 offence detected by them. This interest which any public officer is expected to have - detection of the offence and its successful prosecution - cannot, at any rate, relegate such public official to the category of an interested witness, whose testimony deserves to be appreciated with caution and distrust. To a pointed question by this court it is conceded that PWs. 1 and 2 have not been shown to have any interest against the petitioner. No oblique motive prompted them to initiate proceedings against the petitioner. In these circumstances evidence of PWs. 1 and 2 is certainly entitled to normal and reasonable consideration, with care and caution, of course, but without any undeserved doubt and suspicion.

6. The hostility of PW4 does not in any manner affect the prosecution case. The courts in India do often come across the sad spectacle of independent witnesses turning hostile to the prosecution with impunity. Such hostility by itself cannot deliver any advantage to the indictee. The contents of the contemporaneous seizure mahazar go a long way to support the oral evidence of PWs. 1 and 2. The counsel assails the Crl.R.P.No. 2385 of 2006 4 evidence of PWs. 1 and 2 with the help of two circumstances. He contends that though the records show 290 ml. of arrack was taken as sample, the expert had found that there was 300 ml. No crucial conclusion can be drawn on the basis of this innocuous incongruity as the contemporaneous document shows that the quantity of contraband article taken for sampling is "about 290 ml." It is then contended that though it is the case of the prosecution that the offence was detected near the over bridge, the oral evidence of PWs. 1 and 2 does not specifically support the same. There is no contention that any question was put to them about the precise spot of occurrence vis-a-vis the over bridge. This contention cannot also succeed.

7. There is a contention raised about the details of the seal affixed on the article. One witness had asserted that it was a personal seal, but the seal affixed was with the letter "K.K." . There is nothing to show that there is any significance to this alleged incongruity also. No other contentions are raised on merits.

8. Finally it is contended that the sentence imposed is excessive. Crl.R.P.No. 2385 of 2006 5 Minimum mandatory sentence of fine alone has been imposed. The learned counsel submits that in all there is only 20 litres of liquor seized. I find no merit in the plea for leniency. 200 packets each of 100 ml. were being kept in possession and transported. The quantity cannot be reckoned as small quantity. I am, in these circumstances, satisfied that the sentence of imprisonment imposed - S.I. for six months - is also absolutely reasonable and does not call for interference at all. The challenge fails.

9. This revision petition is hence dismissed. (R. BASANT) tm Judge


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