IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 1395 of 2003()
1. HILARI MACHATO, S/O. JOSEPH MACHATO,
... Petitioner
2. CHANDRASSEKHARAN, S/O. SUBHA
Vs
1. STATE - REPRESENTED BY THE
... Respondent
For Petitioner :SRI.P.V.JAYARAJAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.THANKAPPAN
Dated :16/08/2007
O R D E R
K. Thankappan, J.
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Crl. A. No. 1395 of 2003
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Dated this the 16th day of August, 2007
JUDGMENT
Accused Nos.1 and 2 in S.C.No.231/2000 on the file of the Court
of the Addl. Sessions Judge (Adhoc-I) Kasaragod are the appellants. They
faced trial for an offence punishable under section 55(a) of the Abkari Act
on the allegation that they were found in possession of 344 bottles of Indian
Made Foreign Liquor namely, Ninety Coconut Fenny each containing 180
ml. capacity. To prove the allegation, the prosecution examined PWs.1 to
3 and Exts.P1 to P5 were marked. After closing the evidence, the
appellants were questioned under section 313 Cr.P.C.. They denied the
allegation and stated that they had not involved in the commission of the
offence as alleged by the prosecution. On the side of the defence, DW1 and
DW2 were examined and Exts.D1 and D2 were marked. Relying on the
evidence adduced on both sides, the trial court found both the appellants
were guilty of the offence punishable under section 55(a) of the Abkari
Act and they were convicted thereunder and sentenced to undergo rigorous
imprisonment for four years and also to pay a fine of Rs.1,00,000/- and
in default of payment of fine to undergo rigorous imprisonment for six
months. The judgment of the trial court is challenged in this appeal.
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2. Heard learned counsel for the appellant and learned Public
Prosecutor and perused the materials placed on records.
3. Learned counsel for the appellant contends that the trial court has
committed serious error in accepting the evidence of PWs.3 and 1 to find
the appellants guilty under section 55(a) of the Abkari Act. It is also
contended that even if the evidence of PWs.3 and 1 is accepted, the finding
of the trial court that the appellants had committed an offence punishable
under section 55(a) of the Abkari Act is not sustainable in the light of the
pirnciples laid down in two decisions reported in Surendran V.State of
Kerala (2004(1) KLT 404 , Sudhepan @ Aniyan V. State of Kerala (2005(2)
KLT (Cri) 631) . It is further contended that the evidence of PW3 and 1 is
not sufficient to hold that the prosecution had succeeded in proving the
charge against the appellants.
4. To prove the prosecution case against the appellants, the
prosecution relied on the evidence of PWs.3 and 1 who were the Sub
Inspector of Police and Head Constable of Kumbla Police Station
respectively. PW2 was the only independent witness to support the evidence
of PWs.1 and 3. But, this witness had not given any evidence in support of
the seizure of the contraband article from the appellants. PW3 stated that on
14-8-1999 he received information that the appellants were keeping in
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possession of Indian Made Foreign Liquor at the house of the 1st appellant.
He also stated that he along with PW1 and others went to the house of the
1st appellant and when they reached near house No.7/536 the appellants
were found standing in the court yard and on search, the contraband articles
were found hidden in four plastic sacks and two hard board boxes with
cudgon leaves used for the covering the same. On examination, 344 bottles
of Ninety Coconut Fenny each of 180 ml. capacity were found. This witness
further stated that on preparing Ext.P1 mahazar, the contraband articles
were seized. The appellants were arrested and registered a crime against
them. This witness further stated that on 15-8-1999 the appellants and the
contraband articles were produced before the court. Further evidence of this
witness would show that the samples were got analyzed and as per Ext.P5
chemical analysis report, the sample contained ethyle alcohol and on
completing the investigation, final charge has been laid before the court.
PW1 who accompanied PW3 at the time of detection of the offence had
given evidence in tune with that of PW3.
5. Question to be considered in this appeal is whether the judgment
of the trial court is sustainable or not?
6. With regard to the argument that the finding of the court below
that the appellants had committed an offence punishable under section 55(a)
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of the Abkari Act is not sustainable, as per the principles laid down by this
Court in Surendran’s case (Supra), the case should fall within the ambit of
section 55(a) only when a person was found to be in possession of liquor in
the course of import, export, transport or transit of the goods. The
prosecution case is that the appellants were found in possession of the
contraband article. In Sudhepan’s case (Supra) this Court held that under
section 55(a) of the Abkari Act the prosecution must allege and prove that
possession of the contraband liquor was incidental or in connection with
export, import, transport or transit of liquor. The prosecution in this case
has not proved that the possession of the contraband article was incidental
or in connection with export, import, transport or transit of liquor. If that be
so, the finding of the trial court that the appellants had committed an
offence punishable under section 55(a) of the Abkari Act is not sustainable.
7. It has come out in evidence that DW1 was one of the witnesses
who admitted the signature contained in seizure mahazar as well as arrest
memo as that of his. He was not examined in this case. There is no
explanation offered by the prosecution for non-examination of DW1.
There is no evidence that the house from which the contraband article had
been seized belongs to the 1st appellant as alleged by the prosecution. In this
context, the evidence of PW3 would create doubts regarding the seizure
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itself. It may be noted that the definite case of prosecution is that the house
in front of which the contraband article was found was having No.VII/531,
but in Ext.P1 seizure mahazar the ward number was wrongly written as III.
At the same time in Ext.P3 F.I.R. ward number was shown as I. However,
the prosecution had not proved that the house belongs to the 1st appellant.
At the same time the evidence of DW2 would show that house 3/531
belongs to one Lakshmi and there is no evidence either by PW3 or PW1 that
the 1st appellant was the resident or the owner of the house. In this context,
it has to be noted that independent witnesses were also available at the place
of occurrence, but no independent witness has been examined to prove the
seizure. As per the evidence of PW3, the entire contraband and the samples
were produced before the court on 15-8-1999, but there is no explanation
for the delay in producing the article before the court. As per the principles
laid down by this Court in the above two decisions, it is the duty of the
prosecution to produce the contraband article before the court within a
reasonable time. Considering the over all appreciation of the entire
evidence adduced by the prosecution and in the light of the case set up by
the appellant under section 313 Cr.P.C., this Court is of the view that the
finding of the trial court is perverse. Hence, the impugned judgment is set
aside and the appellants are acquitted. Bail bonds executed by the appellants
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shall stand cancelled. It is made clear that if any amount has been deposited
by the appellants as fine, it shall be returned to the appellants as per law.
The appeal is allowed as above.
K. Thankappan,
Judge.
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K. Thankappan,J.
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Crl.A. No. 251/2007
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Judgment
16-7-2007