IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 1377 of 2006()
1. RAJAN S/O.RAMAKRISHNAN,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY
... Respondent
For Petitioner :ADV.KURIKOSE (STATE BRIEF)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.THANKAPPAN
Dated :06/02/2007
O R D E R
K.THANKAPPAN, J.
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CRL. APPEAL NOS. 1377 & 1598 OF 2006
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Dated this the 6th day of February, 2007
JUDGMENT
The appellants are accused Nos.2 and 1 in Sessions Case No.1168 of
2005 on the file of the Additional Sessions Court for trial of Abkari Act
Cases, Neyyattinkara. Both the appellants faced trial for offence
punishable under Section 55(a) and (i) of the Abkari Act.
2. The prosecution case against the appellants was that on 4.5.2004
PW.3, the Sub Inspector of Police, Nemom Police Station on getting
information regarding sale of arrack in the property belonging to one
Madhavan Nair @ Melom situated near Pamamcode Parayil Temple, went
to the place of occurrence and found accused No.1, appellant in Crl.
Appeal No.1598 of 2006, in possession of a 3 litre bottle containing 1 =
litres of arrack and a glass tumbler and accused No.2, appellant in Crl.
Appeal No.1377 of 2006, carrying a 35 litre white jerry can containing 30
litres of spirit, both engaged in the sale of arrack. It is the further case of
the prosecution that on seeing the police party, accused No.1 abandoned
the bottle and ran away from the place, accused No.2 was arrested on the
spot and the contraband articles were seized on preparing Ext.P1 mahazar.
CRL.A. NOS. 1377 & 1598/2006 2
and both the accused were charge sheeted by the police. To prove the case
against the appellants, the prosecution examined PWs.1 to 3 and produced
Exts.P1 to P7 and MOs. 1 and 2. Ext.D1 was produced on the side of the
defence. On closing the prosecution evidence, the appellants were
questioned under Section 313 Cr.P.C. The appellants denied the
allegations levelled against them. Accused No.1 stated that he was in jail
in connection with another Abkari case of Kattakada Police Station and
that he was arrested on production warrant. However, the trial court
found both the appellants guilty under Section 58 of the Abkari Act,
convicted them thereunder and sentenced them to undergo rigorous
imprisonment for a period of 4 years each and to pay a fine of
Rs.1,00,000/- each and in default of payment of fine, to undergo rigorous
imprisonment for a further period of six months each. Set off was also
allowed against the substantive term of imprisonment. The above
conviction and sentence are challenged in these appeals.
3. Both these appeals are filed through the jail authorities and a
State Brief has been appointed in each appeal to defend the appellants.
Heard the learned counsel appearing for the appellants as well as the
learned Public Prosecutor.
CRL.A. NOS. 1377 & 1598/2006 3
4. Learned counsel appearing for the appellants have raised three
contentions before this Court: (i) the trial court went wrong in finding the
appellants guilty on the basis of the evidence of PWs.2 and 3 who were
police officials and whose evidence was contradictory, (ii) PW.3, the Sub
Inspector of Police violated the provisions of the Abkari Act and the
provisions of the Kerala Excise Manual while seizing the contraband
articles and taking samples for chemical analysis and (iii) the trial court
had not considered the fact that the prosecution witnesses had not
identified accused No.1 as the person who had ran away from the scene of
occurrence.
5. The prosecution tried to prove the case against the appellants
through the evidence of PWs.2 and 3. PW.3 was the Sub Inspector of
Police, of Nemom Police Station who detected the crime. He stated that
on getting information regarding sale of arrack, he went to the place of
occurrence and found accused No.1 in possession of MO.2 bottle
containing arrack and accused No.2 holding MO.1 plastic can containing
spirit. He further stated that on seeing the police party, accused No.1
abandoned the bottle, jumped into the river and escaped from the place and
accused No.2 was arrested. This witness also stated that the contraband
articles were seized as per Ext.P1 mahazar and sample was taken from
CRL.A. NOS. 1377 & 1598/2006 4
both MOs.1 and 2 for chemical analysis and then the material objects were
produced before the court. Ext.P7 is the certificate of chemical analysis.
This witness also deposed that from the statement given by accused No.2,
it was revealed that the person who escaped from the scene of occurrence
was accused No.1. PW.3 further stated that he registered crime against
both the accused and subsequently accused No.1 was arrested on
production warrant.
6. The Head Constable who had accompanied PW.3 on the day of
the incident was examined as PW.2. This witness also stated that when he
and PW.3 reached the spot accused No.1abandoned the bottle containing
arrack and escaped from the place. He also stated that accused No.2 was
found holding a can which on examination was found to contain 30 litres
of spirit. PW.2 further stated that accused No.2 informed that he was
only an employee of accused No.1 and that the person who raw away from
the spot was accused No.1.
7. The question to be considered, in the light of the contentions
raised by the learned counsel for the appellants, is whether the evidence
adduced by the prosecution is sufficient to identify accused No.1 and also
to hold that the appellants were in possession of MOs. 1 and 2.
CRL.A. NOS. 1377 & 1598/2006 5
8. The evidence of PW.3 would show that when he reached the spot,
he saw one person jumping into the river and he was told by accused No.2
that the person who fled from the scene of occurrence was accused No.1.
PW.3 had no previous acquaintance with accused No.1. Further, Ext.P1
mahazar would show that the seizure of the contraband articles and taking
of samples were witnessed only by PW.2, the Police Constable and no
independent witness had signed Ext.P1. The only independent witness
examined turned hostile to the prosecution. She stated that she had not
seen either of the accused at the spot or seizure of the contraband articles
as spoken to by PWs.2 and 3. Hence, the case of the prosecution that
PW.3 seized MOs.1 and 2 in the presence of independent witness is
doubtful.
9. The evidence of PW.2 would show that he was not in a position
to identify accused No.1 as the person who had ran away from the scene of
occurrence as he had no previous acquaintance with accused No.1. He
also stated that there were houses nearby, but PW.3 had not called anybody
to witness the action taken by him. When cross-examined, this witness
stated that accused No.1 while escaping from the scene of occurrence
threw away MO.2 bottle containing arrack and the glass into the river and
CRL.A. NOS. 1377 & 1598/2006 6
thereafter the bottle was taken from the river. It is to be noted that PW.3
had no such case. He stated that accused No.1 abandoned MO.2 bottle at
the spot. PW.2 also stated that no independent witness was present at the
time of detection of the crime. Hence, the evidence of PWs.2 and 3 alone
is not sufficient to prove that MOs.1 and 2 were seized from the appellants.
10. With regard to the contention that PW.3 had not complied with
the provisions of the Abkari Act and the Kerala Excise Manual while
effecting seizure of the contraband articles and taking samples, the
evidence of PW.2 is relevant. It is seen from the evidence of PW.2 that
accused No.1 threw away MO.2 bottle and the glass into the river while
escaping from the place. If that be so, sample could not have been taken
from MO.2. Though the trial court found that there was no need to doubt
the integrity of the witnesses, there is lack of evidence to prove that
MOs.1 and 2 were seized from the appellants. Further, though PW.2 had
stated that samples were taken by PW.3 and the same were sealed and
labelled before sending to the court, it was reported that the samples were
not seen produced in the court . In the above circumstances, this Court is
of the view that the prosecution failed to prove that PW.3 complied with
the provisions of the Abkari Act and the Kerala Excise Manual. Further,
the prosecution case was that accused No.1 was arrested after about three
CRL.A. NOS. 1377 & 1598/2006 7
months from the date of occurrence and that too on production warrant. It
has come out in evidence that accused No.1 was in jail in connection with
another Abkari case. If that be so, it was the duty of the prosecution to
explain how accused No.1 was involved in the present case. There was no
explanation in this regard from PWs.2 and 3. It appears that the evidence
adduced by the prosecution is not free of doubt. Hence, the appellants are
entitled to the benefit of doubt.
11. On an overall appreciation of the entire evidence, this Court is
of the view that the prosecution has not succeeded in proving the case
against the appellants. In the above circumstances, the conviction and
sentence ordered against the appellants are set aside and the appellants are
found not guilty of the offence alleged against them. The appellants,
accused Nos.2 and 1 in Sessions Case No.1168 of 2005 on the file of the
Additional Sessions Court for trial of Abkari Act Cases, Neyyattinkara are
acquitted. They shall be released forthwith, if they are not wanted in
connection with any other case.
The Crl. Appeals are allowed as above.
(K.THANKAPPAN, JUDGE)
sp/
CRL.A. NOS. 1377 & 1598/2006 8
K.THANKAPPAN, J.
CRL.A.NOS.1377 & 1598
OF 2006
JUDGMENT
6TH FEBRUARY, 2007.