High Court Kerala High Court

P.Andruman vs State Of Kerala on 10 July, 2007

Kerala High Court
P.Andruman vs State Of Kerala on 10 July, 2007
       

  

  

 
 
  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