IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 1947 of 2003()
1. K.BABU S/O. UGGAPPA POOJARI,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.T.SETHUMADHAVAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.THANKAPPAN
Dated :18/10/2007
O R D E R
K.THANKAPPAN, J.
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CRL. APPEAL NO. 1947 OF 2003
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Dated this the 18th day of October, 2007
JUDGMENT
The appellant – accused in S.C. No.523 of 2000 on the file of the
Additional Sessions Court (Ad hoc I),Kasaragod, challenges the judgment
of the trial court by which he was found guilty under Section 55(a) of the
Abkari Act, convicted thereunder and sentenced to undergo rigorous
imprisonment for three and a half years and to pay a fine of Rs.1,00,000/-
and in default of payment of fine, to undergo rigorous imprisonment for a
further period of three months.
2. The prosecution case against the appellant – accused was that on
4.2.2000 at 4.50 p.m., the accused was found in possession of 25 litres of
spirit in a cannas of about 35 litre capacity without any authority under the
provisions of the Abkari Act. To prove the charge against the accused, the
prosecution examined PWs.1 and 2 and produced Exts.P1 to P5. on the
side of the defence, Exts.D1 and D2 were produced, but no witnesses were
examined. After closing the prosecution evidence, the accused was
CRL.APPEAL NO. 1947/2003 2
questioned under Section 313 Cr.P.C. Denying the prosecution charge, he
stated that he was innocent and that the case was foisted against him by the
police. The trial court, relying on the evidence of PW.2, the Sub Inspector
of Police who detected the offence, investigated the case and filed the final
charge sheet against the appellant – accused, found that the prosecution
succeeded in proving that the accused was found in possession of 25 litres
of spirit on the day of the incident.
3. This Court heard the learned counsel appearing for the appellant
as well as the learned Public Prosecutor.
4. The finding of the trial court is challenged by the learned counsel
appearing for the appellant on the following grounds: (i) the trial court
ought to have found that the prosecution had not proved the case against
the appellant – accused beyond reasonable doubt as the only evidence
adduced by the prosecution was that of PW.2, the investigating officer, (ii)
the evidence of PW.2 would not show that the alleged seizure of 25 litres
of spirit on 4.2.2000 was from the premises of House No.KMC II/167 or
that the said house belonged to the appellant and (iii) PW.2 had not
complied with the provisions of the Abkari Act and the Kerala Excise
Manual while detecting the offence and taking the samples as there were
CRL.APPEAL NO. 1947/2003 3
no independent witnesses present during the relevant time and samples
taken were also not properly sealed or labelled.
5. The trial court relied only on the evidence of PW.2. Though
PW.1 was examined to prove that the cannas containing spirit was seized
in his presence, this witness stated that he had not seen anything being
seized from the appellant or from the house of the appellant. In the above
circumstances, the evidence of PW.2 has to be analysed carefully. The
evidence of PW.2 would show that when he reached the place of
occurrence on getting information that the appellant – accused was
keeping spirit in his house, he saw the appellant standing in the courtyard
of the house and on conducting a search of the premises of the house, he
found a cannas hidden beneath coconut husks in a shed situated about
seven meters away from the house. PW.2 stated before the court that the
appellant had told him that the house belonged to him and it was he who
had hidden the cannas beneath the coconut husks. When cross-examined,
this witness had stated that he had not conducted any investigation
regarding the ownership of the house. He also stated that he had not
verified the ration card or any other records of the appellant. PW.2 also
admitted that even though there were inmates in the house, none of them
were examined and that arrest memo was not served on any of the inmates
CRL.APPEAL NO. 1947/2003 4
of the house. That apart, the specific case of the appellant – accused when
he was questioned under Section 313 Cr.P.C. was that the house does not
belong to him. Further, Exts.D1 and D2 would show that the appellant
was residing away from the place of occurrence. The trial court had not
considered these aspects. Further, it is to be noted that though PW.1 and
another witness had signed Ext.P1 seizure mahazar, only PW.1 was
examined and he stated that he had signed Ext.P1 at a hotel and not at the
place of occurrence as spoken to by PW.2. In the above circumstances,
this Court is of the view that the reliance placed by the trial court on the
evidence of PW.2 is not sufficient to prove that the house from the
premises of which the cannas was seized belonged to the appellant –
accused.
6. It is also seen from the property list that all the items were
produced before the court only on 7.2.2000 and the learned Magistrate
after verifying the items returned the same for safe custody. PW.2 had
not stated anything regarding the safe custody of the articles seized from
the appellant – accused. He only stated that he had sent the forwarding
note for sending the samples for chemical analysis. But it is seen that
Ext.P4 forwarding note does not contain any date. This coupled with the
delay in producing the materials before the committal court creates doubt
CRL.APPEAL NO. 1947/2003 5
regarding the evidence of PW.2. Further, it is also not stated in Ext.P1
seizure mahazar whether any sample was taken by PW.2 at the place of
occurrence and labelled the same in the presence of any witnesses. All
these circumstances would clearly show that the finding of the trial court
that PW.2 proved the prosecution case is not supported by any legal
evidence and hence not acceptable.
7. One more aspect to be considered is that as per the provisions of
the Abkari Act and the Kerala Excise Manual, it is the duty of the
investigating officers or the excise officers who detect the offence to get
the presence of independent witnesses while seizing the contraband
articles and taking samples. Of course, there is no legal bar for the
prosecution to prove its case only on the evidence of the investigating
officer, if such evidence is otherwise free from doubt. This Court has
already found that the evidence of PW.2 is not free from doubt. The
prosecution only proved the presence of the appellant – accused in the
courtyard of the house, but not the ownership of the house. In the above
circumstances, this Court is of the view that the evidence adduced by the
prosecution is not sufficient to hold that the prosecution succeeded in
proving the case against the appellant. The appellant is, therefore, entitled
to the benefit of doubt.
CRL.APPEAL NO. 1947/2003 6
8. Accordingly, the finding entered by the trial court and the
conviction and sentence ordered against the appellant are set aside. The
appellant is acquitted of all the charges levelled against him.. If the
appellant has deposited any amount, that shall be refunded to him.
The Crl. Appeal is allowed as above. The bail bonds executed by
the appellant shall stand cancelled.
(K.THANKAPPAN, JUDGE)
sp/
CRL.APPEAL NO. 1947/2003 7
K. THANKAPPAN, J.
CRL.A. NO.
JUDGMENT
OCTOBER, 2007