IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 748 of 2007()
1. P.ANDRUMAN, C.NO.4456,
... Petitioner
2. STATE OF KERALA,
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :INNOCENT FRANCIS PAPPALI[STATE BRIEF]
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.THANKAPPAN
Dated :10/07/2007
O R D E R
K.Thankappan, J.
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Crl. A. No. 748 of 2007
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Dated this the 10th day of July, 2007
JUDGMENT
Appellant, accused in S.C. No.806/2004 on the file of the Court of
Session, Kasaragod Division at Hosdurg, faced trial for offence punishable
under section 55(g) of the the Abkari Act on the allegation that he was
found in possession of 55 litres of wash for the purpose of illegal
distillation of arrack and the same was stored adjacent to the house of the
appellant at the place called Nellimala in Malom Village. To prove the
charge against the appellant, the prosecution examined PWs.1 to 6 and
produced Exts.P1 to P7. MOs.1 to 3 were also produced on the side of the
prosecution. After closing the evidence, the appellant was questioned
under section 313 of Cr.P.C. He denied the allegation and stated that he
was innocent and the case was foisted against him by the police. On the side
of the defence, DW1 was examined and Exts.D1 to D1(c) were marked.
Relying on the evidence adduced by the prosecution both, oral and
documentary, the trial court found the appellant guilty under section 55(g)of
the the Abkari Act and he was convicted thereunder and sentenced to
undergo simple imprisonment for four years and to pay a fine of
Rs.1,00,000/- and in default to undergo simple imprisonment for nine
Crl.A.No.748/07 2
months. The conviction and sentence awarded against the appellant are
assailed in this appeal.
2. Since the appeal has been filed through the jail authorities and
no counsel has been engaged to defend the case of the appellant, this
Court appointed a member of State Brief panel to defend the case of the
appellant.
3. Learned counsel for the appellant submits that the trial court has
committed serious error in relying on the evidence of PW1 and PW5, the
official witnesses, as the independent witness were turned hostile to the
prosecution. The learned counsel further submits that even in accepting
the evidence of PW1 and PW5 it can be seen that the prosecution failed to
prove that the appellant was in possession of contraband article for the
purpose of distillation or preparation of arrack, as there is no evidence to
support the above charge against the appellant. To substantiate the case of
the appellant, the learned counsel relies on a decision of this Court
reported in Surendran V.State of Kerala (2004(1) KLT 404 and Sudhepan
@ Aniyan V. State of Kerala (2005(2) KLT (Cri) 631).
4. The prosecution case is that on 2-5-2002 at 4 P.M. the
appellant was found in possession of 55 litres of wash for the purpose of
illegal distillation of arrack and was stored the same adjacent to the house
Crl.A.No.748/07 3
of the appellant at place called Nellimala in Malom Village. The further
case of the appellant is that the appellant was arrested from the scene of
occurrence on 2-5-2002 itself and MO1 and MO2 were seized as per
Ext.P1 mahazar prepared in the presence of independent witnesses. It is
stated that the appellant was produced before the court on 3-5-2002. As
per Ext.P4 chemical analysis report, the samples contained 11.77% of
ethyle alcohol by volume and the sample is wash.
5. The first contention of the learned counsel that the trial court
has committed serious error in relying on the evidence of PW1 and PW5
official witnesses as the independent witness were turned hostile to the
prosecution. There is no rule that the evidence of official witness cannot
be relied on to prove the case, if the other circumstances are also proved in
favour of the prosecution. Though PW2, independent witness, turned
hostile to the prosecution, he admitted his signature in Ext.P1 seizure
mahazar. In the circumstances, the evidence of PW1 and PW5 is rightly
accepted by the trial court to prove that the appellant was found in
possession of 55 litres of wash.
6. Question to be considered in this appeal is whether the
conviction entered by the trial court under section 55(g) of the the Abkari
Act is sustainable or not ?
Crl.A.No.748/07 4
6. The prosecution case is that the appellant was found in
possession of 55 litres of wash for the purpose of illegal distillation of
arrack and the same was stored adjacent to the house of the appellant.
Section 55(g) of the the Abkari Act reads as follows:-
(g) uses, keeps or has in his possession any
materials, still, untensil, implement or apparatus
whatsoever for the purpose of manufacturing liquor
other than toddy or any intoxicating drug”
A reading of the above section would show that the prosecution must
allege and prove that materials were kept for the purpose of manufacturing
liquor. In this context, there is no evidence to show that materials were
kept for the purpose of manufacturing liquor. Either PW1 or PW5 had
not stated before the court that they had seen any materials or utensil for
the purpose of distillation of arrack. In the above circumstances, this
Court is of the view that the finding of the trial court that the appellant had
committed an offence under section 55(a) of the Act is not sustainable. In
this context, a decision reported in Sudhepan @ Aniyan V. State of
Kerala (2005(2) KLT (Cri) 631) is relevant. In the above decision this
Court held that to attract an offence under section 55(a) of the the Abkari
Act, the prosecution must allege and prove that possession of the
Crl.A.No.748/07 5
contraband liquor was incidental or in connection with export, import,
transport or transit of liquor. Looking into the above angle, for applying
section 55(g) of the Abkari Act, it has to be pleaded and established that
materials were kept for the purpose of manufacturing liquor. Therefore,
the finding of the trial court that the appellant found guilty under section
55(g) of the Abkari Act is not legally sustainable.
7. In the above circumstances, the conviction and sentence
awarded against the appellant/accused in S.C.No.806/2004 on the file of
the Court of Session, Kasaragod Division, Hosdurg are set aside and the
appellant is acquitted. Therefore, the appellant shall be released
forthwith unless required in any other case.
The appeal is allowed as above.
K. Thankappan,
Judge.
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K. Thankappan,J.
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Crl.A. No. 748 /2007
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Judgment
10-7-2007