IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 2036 of 2006()
1. ROY, C.NO.605,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :ADV.T.K.KUNHABDULLA(STATE BRIEF)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.THANKAPPAN
Dated :18/01/2007
O R D E R
K.THANKAPPAN, J.
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CRL. APPEAL NO. 2036 OF 2006
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Dated this the 18th day of January, 2007
JUDGMENT
The appellant is the accused in Sessions Case No.175 of 2004 on the
file of the Additional Sessions Court (Special Court for N.D.P.S. Act
Cases), Thodupuzha. He faced trial for the offences punishable under
Sections 55(a)(1) and 8(1) read with Section 8(2) of the Abkari Act.
2. The prosecution allegation against the appellant was that on
14.6.2002 at 1.15 p.m., he was found in possession of 10 litres of arrack in
two plastic containers each containing 5 litres of arrack and engaged in the
sale of arrack near the market at Vazhavare. To prove the case against the
appellant, the prosecution examined PWs.1 to 5 and produced Exts.P1 to
P9 as well as MOs.1 to 4. Though the appellant denied the allegations
levelled against him when he was questioned under Section 313 Cr.P.C.,
the trial court, relying on the evidence adduced by the prosecution, found
the appellant guilty of the above charges, convicted him thereunder and
sentenced him to undergo simple imprisonment for a period of four years
and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to
CRL.APPEAL NO.2036/2006 2
undergo simple imprisonment for a further period of one year under
Sections 55(a) and 8(1) of the Abkari Act. No separate sentence was
awarded under Section 55(1) of the Abkari Act. The above conviction and
sentence are challenged in this appeal.
3. This appeal is filed through the jail authorities and the appellant
is defended by a State Brief. This Court heard the learned counsel
appearing for the appellant as well as the learned Public Prosecutor.
4. Learned counsel appearing for the appellant has raised two main
contentions before this Court: (i) the trial court committed serious error in
relying on the evidence of PW.5 to find the appellant guilty of the offences
alleged against him and (ii) the finding of the trial court that the appellant
was guilty under Section 55(a) of the Abkari Act is unsustainable in law as
per the principles laid down by this Court in Purushan v. State of Kerala,
2002(2) K.L.T. 661, Surendran v. Excise Inspector, 2004(1) K.L.T. 404
and Sudhepan @ Aniyan v. State of Kerala, 2005(2)K.L.D.(Cri.) 631.
5. The entire prosecution case is projected through the evidence of
PW.5. He was the Sub Inspector of Police, Kattappana at the time of the
incident. He stated that on 14.6.2002 at 12 a.m. he got reliable information
CRL.APPEAL NO.2036/2006 3
to the effect that the appellant was selling arrack near the market at
Vazhavara and that on reaching the place, he saw two persons standing
near the appellant and the appellant selling arrack to one of them. This
witness further stated that he sent one police constable in mufti to the place
of occurrence and that he caught hold of the appellant, but the appellant
escaped and ran away from the place of occurrence. PW.5 further stated
that he examined the plastic containers and took 150 ml. of arrack from
each container for chemical analysis. This witness also gave evidence to
the effect that he seized MO.1series of bottles, MO.2 glass and MOs.3 and
4 plastic containers on preparing Ext.P1 mahazar in the presence of PWs.1
to 4 and produced the material objects before the court on 15.6.2002.
6. PWs. 1 to 4 were examined to prove seizure of the contraband
articles and taking of samples. The evidence of these independent
witnesses does not corroborate with the version given by PW.1. PWs.2 to
4 stated that they had not seen the appellant at the place of occurrence, but
they admitted their signature in Ext.P1 mahazar. Even PW.1 admitted his
signature in Ext.P1. They further stated that they had signed Ext.P1 as
PW.5 had asked them to do so. None of these witnesses stated that the
police had seized the contraband articles from the accused. They stated
that the police had the contraband articles with them.
CRL.APPEAL NO.2036/2006 4
7. It is clear from the evidence of PW.5 that four police constables
had accompanied him to the place of occurrence and that P.C. No.1462
had tried to catch hold of the accused. But, none of the police constables
were examined in this case to prove the seizure of the contraband articles.
The appellant had also stated when questioned under Section 313 Cr.P.C.
that the case was foisted against him as he had filed a complaint against
the police officers of Kattappana Police Station in Crime No.619 of 2001.
PW.5 himself had admitted that such a case was registered on the basis of
the complaint filed by the appellant. In the above circumstances, the trial
court was not correct in placing reliance on the evidence of PW.5.
Though PWs.1 to 4 were examined as independent witnesses, they had not
supported the prosecution case.
8. The next question is regarding the finding entered by the trial
court that the appellant was guilty under Section 55(a) of the Abkari Act.
The prosecution has no case that the appellant was found in possession of
arrack in the course of export, import, transport or transit. As per the
principles laid down in the decisions referred to above, an offence under
Section 55(a) of the Abkari Act will be attracted only on adducing
evidence to the effect that possession of the contraband article was in
CRL.APPEAL NO.2036/2006 5
connection with export, import, transport or transit. Hence, the finding of
the trial court that the appellant committed offence under Section 55(a) of
the Abkari Act is also not legally justifiable.
9. On an overall appreciation of the entire evidence, it is seen that
there is no independent evidence to show that the contraband articles were
seized from the appellant. Hence, the benefit of doubt has to be given to
the appellant. In the above circumstances, the conviction and sentence
ordered against the appellant – accused in S.C. No.175 of 2004 on the file
of the Additional Sessions Court ( Spl. Court for N.D.P.S. Act Cases),
Thodupuzha are set aside and the appellant is acquitted. The appellant
shall be released forthwith, if he is not wanted in connection with any
other case.
The Crl. Appeal is allowed as above.
(K.THANKAPPAN, JUDGE)
sp/
CRL.APPEAL NO.2036/2006 6
K.THANKAPPAN, J.
CRL.A. NO.2036/2006
JUDGMENT
18TH JANUARY, 2007.