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2015 (11) TMI 1520 - KERALA HIGH COURT

2015 (11) TMI 1520 - KERALA HIGH COURT - TMI - Seeking modification in the sentence order - Offence punishable under Section 55(a) - Seizure of spirit - Appellant contended that there is a difference in the number of the car in the forwarding note and in the Chemical Analysis Report. Also sample was taken only from one of the compartments and the non-production of the tube used for taking sample - Held that:- true, there is a slight difference in the number of the car in the forwarding note and .....

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and 3 have uniformly stated that the contents of all the compartments found in the car were identical and they did not feel that each of the compartments contain different liquids. In such circumstances, it is by now well settled that it is sufficient if the sample is taken from one of the bottles or one of the compartments as the case may be. This contention therefore too should fail. Therefore, the court has found that the defence set up is totally false. On an independent analysis of the evid .....

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concerned. There is no antecedents or history of the accused having been involved in such transportation or carrying of contraband articles and nor after going on bail, he has done it again. Under these circumstances, it can be said that there is some substance in the contention of the appellant that some leniency may be shown with regard to the sentence. True, the crime is heinous and the consequences are drastic. Spirit flows and flows in Kerala. That has necessarily to be curbed. But in the p .....

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is set aside. - Decided in favour of appellant - CRL.A.No. 34 of 2006 (A) - Dated:- 25-11-2015 - MR.JUSTICE P.BHAVADASAN FOR THE APPELLANT : ADVS.SRI.D.PEETHAMBARAN, SRI.MATHEW CHERIAN, SRI.M.R.SABU FOR THE RESPONDENT : PUBLIC PROSECUTOR SMT. S. HYMA J U D G M E N T P.BHAVADASAN, J. The accused was prosecuted for the offence punishable under Section 55(a) of the Abkari Act. He was found guilty. He was therefore convicted and sentenced to suffer rigorous imprisonment for five years and to pay a .....

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e driver looked nervous. Feeling suspicious, the car was thoroughly examined. From below the seats, they could unearth some sort of a liquid in the compartments made therein. On examination, they were convinced that it was spirit. Articles were seized in the presence of witnesses and the accused was arrested. PW1 took 200ml as sample in a bottle having a capacity of 375ml and sealed and labelled the same containing the signatures of the accused, witnesses and PW1. Further examination of the car .....

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000. After preparing the occurrence mahazar, arrest memo, along with the arrest memo etc. the accused was produced before the court immediately. The vehicle seized was produced before the Assistant Excise Commissioner. The entire contraband articles, after taking the sample, was produced before court. Ext.P6 is the property list produced before court. Ext.P7 is the forwarding note prepared by him and he obtained Ext.P8 report. As per the report, the liquid analyzed was spirit with 80.70 percent .....

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f Sessions, committed the case to Sessions Court, Kalpetta under Section 209 of Cr.P.C. after following the necessary procedures. The said court made over the case to Additional Sessions Court, (Adhoc-II), Kalpetta, for trial and disposal. 4. The latter court, on receipt of records and appearance of the accused before the said court, framed charge for the offence punishable under Section 55(a) of the Abkari Act. 5. To the charge the accused pleaded not guilty and claimed to be tried. The prosecu .....

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ineapple. He had waited there till night to get the money for the commodity. As he was not able to receive the money and as he had to return home immediately, he boarded the lorry which was coming to Thrissur. At the Muthanga Check Post, the lorry was stopped and the accused claimed that he got down from the lorry and was waiting on the road. He found that the Excise Officers were inspecting a vehicle and due to enthusiasm and anxiety, he came to the place. He claimed that one of the Excise Offi .....

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dence of PWs 1, 3, 4 and 5 left one in no doubt that the accused was the driver of the vehicle and that 450 litres of spirit was seized from the vehicle which he had driven on the day of incident. The court below found that his story of travelling in a lorry etc. are false and without any basis and on finding him guilty, conviction and sentence followed. 9. The learned counsel appearing for the appellant assailing the conviction contended that the number of the vehicle shown in the forwarding no .....

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that even according to the prosecution, the spirit was loaded in several compartments in the car and only one sample has been taken and that is insufficient. Finally, it is contended that even according to PW1, the sample was taken with the aid of a tube and that tube had not been produced before court. These are the significant matters which go to the root of the issue and these infirmities make the conviction illegal. 10. The learned Public Prosecutor on the other hand contended that none of .....

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ime number involved in this case. Therefore, that can be treated only as a clerical error, which does not cause any prejudice to the accused. PW2 has given reasons as to why he could not produce the article on the same day and he has given reasonable explanation for producing the contraband article on the next day. There is no reason to doubt his version so that the delay is properly explained. Otherwise also, the learned Public Prosecutor relied on a Division Bench decision of this Court which .....

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artments were identical, in which case, it is well settled by now that sample taken from one bottle from one of the compartments is sufficient. The grievance that the tube by which the sample was collected is not produced, according to the learned Public Prosecutor, is ridiculous. There is no obligation or there is no duty cast on the person who takes the samples to produce that utensil by which the sample is taken. In short, the learned Public Prosecutor contended the court below has analyzed t .....

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ad examined the vehicle. He had discovered the hidden compartments in the car containing the contraband article. He then speaks about having made it known to the accused that he had committed a crime and says that he prepared the arrest memo and had the accused arrested. He also speaks about the sample taken and he speaks about having prepared Ext.P1 mahazar also. He then says that he had the articles, accused and the documents produced before the Range Office. In his evidence regarding the dete .....

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on to these witnesses that when the car was brought to a halt at the behest of PW1, the actual occupants took to their heels and the accused was falsely implicated. 12. The evidence of PW5 assumes importance in this connection. He, at the relevant time, was working as the Sales Tax Inspector. He was on duty at Muthanga Check Post. An Ambassador car was brought to a halt near the check post and the Excise Officers were seen going near the vehicle. Inquisitiveness took him to the place. He found t .....

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accused who had driven the vehicle which was brought to a halt at the check post from which the contraband article was seized. 14. Regarding the seizure of the contraband article, sufficient support is available from Ext.P1 mahazar, a contemporaneous document prepared by PW1 and produced before the court on the same day itself along with the occurrence report. The chances of manipulation and fabrication are far too remote. It is significant to notice that the accused was also produced on the sa .....

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in the number of the car in the forwarding note and in the Chemical Analysis Report. True, there is a slight difference. But as rightly pointed out by the learned Public Prosecutor, the crime number is shown in the Chemical Analysis Report and so also it is stated that the sample seal forwarded tallied with the seal found on the sample bottle sent for analysis. The number shown in the Chemical Analysis Report can only be a clerical error. 17. PW2, the person before whom the articles, documents .....

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the compartments too is without any basis or whatsoever. PWs 1 and 3 have uniformly stated that the contents of all the compartments found in the car were identical and they did not feel that each of the compartments contain different liquids. In such circumstances, it is by now well settled that it is sufficient if the sample is taken from one of the bottles or one of the compartments as the case may be. This contention therefore too should fail. 19. Now coming to the last contention regarding .....

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ccused travelling in a lorry etc., are nothing, but a cock-and-bull story. 21. The court below was therefore perfectly justified in finding the accused guilty. His conviction has only to stand. 22. Faced with the above situation, the learned counsel appearing for the appellant pointed out that the sentence imposed is too severe and is disproportionate to the offence alleged to have been committed by the accused. He has highlighted the difficulties and problems of the accused while answering to t .....

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