IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL A No. 2242 of 2005() 1. SIVASANKARA PILLAI, S/O.CHELLAPPAN ... Petitioner Vs 1. STATE OF KERALA, REP. BY THE CIRCLE ... Respondent For Petitioner :SRI.C.RAJENDRAN For Respondent : No Appearance The Hon'ble MR. Justice K.THANKAPPAN Dated :03/08/2007 O R D E R K.THANKAPPAN, J. ---------------------------------------------- CRL. APPEAL NO.2242 OF 2005 ---------------------------------------------- Dated this the 3rd day of August, 2007 JUDGMENT
The sole accused in S.C. No.1511 of 2002 on the file of the III
Additional Sessions Court, Kollam is the appellant. The appellant faced
trial for the offence punishable under Section 55(a) of the Abkari Act.
2. The prosecution case against the appellant – accused was that on
17.12.1997 at 5.15 p.m., six cannas, each containing two litres of arrack
were found in the lien-to shed attached to the house where the appellant
was present. It was the further case of the prosecution that seven empty
cans emitting smell of arrack were also found in the same room. To prove
the case against the appellant, the prosecution examined PWs.1 to 4 and
produced Exts.P1 to P7 as well as MOs. 1 and 2 series. No oral or
documentary evidence was adduced on the side of the defence. After
closing the prosecution evidence, the accused was questioned under
Section 313 Cr.P.C.. He denied the allegations levelled against him and
stated that the case was foisted against him at the instance of his
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neighbour, one Sasidharan Unnithan on account of the civil and criminal
cases were pending between him and the said Sasidharan Unnithan. He
further stated that the house from where the contraband articles were
seized does not belong to him. However, after considering the
prosecution evidence, the trial court found the appellant guilty under
Section 55(a) of the Abkari Act, convicted him thereunder and sentenced
him to undergo rigorous imprisonment for one year 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. The benefit under
Section 428 Cr.P.C. was also granted to the petitioner. The above
conviction and sentence are challenged in this appeal.
3. 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 the
following contentions: (i) the finding of the trial court that the appellant
committed offence punishable under Section 55(a) of the Abkari Act is not
legally sustainable as the prosecution failed to prove that the contraband
articles found in the possession of the appellant were in connection with
export, import, transport or transit, (ii) the trial court committed serious
CRL.APPEAL NO.2242/2005 3
error in placing reliance on the evidence of PWs.2 and 3 as there was no
independent evidence to support their version and (iii) PW.3, the Excise
Range Inspector had violated the mandatory provisions of Section 31 of
the Abkari Act and the provisions of the Kerala Excise Manual while
conducting search of the house and seizure of the contraband articles as
there was no evidence to show that he had prepared and sent a search
memo to the court before entering the house and no independent witness
was present at the time of search and seizure and while taking the samples
for chemical analysis and producing the same before the court below so as
to rule out the chance of substitution.
5. The trial court relied on the evidence of PWs.2 and 3 to prove
that the appellant was found in possession of 12 litres of arrack on
17.12.1997. PW.2, the Circle Inspector, Excise, Kollam was the officer
who detected the offence. He stated before the court below that on
17.12.1997 at 5.15 p.m. on getting information that the appellant was
engaged in the sale of arrack, he along with other officials went to the
house of the appellant and on conducting a search, found six cannas each
containing 2 litres of arrack and seven empty cans emitting smell of arrack.
He further stated that he took 200 ml. of arrack from one of the cans as
sample, sealed and labelled the cans containing the contraband articles as
CRL.APPEAL NO.2242/2005 4
well as the bottle containing the sample and seized the contraband articles
as per Ext.P2 mahazar. This witness further stated that he prepared Ext.P3
arrest memo, arrested the accused and produced the accused as well as the
contraband articles before the Circle Office.
6. PW.3 was the Excise Inspector attached to the circle office who
had accompanied PW.2 during the relevant time. He gave evidence in
support of the version given by PW.2. He stated that he prepared Ext.P5
occurrence report on 18.12.1997 and produced the accused before the
court along with the material objects. PW.4, the Excise Inspector, Kollam
range stated that he conducted further investigation in the matter and filed
the charge sheet. He also stated that he proved Ext.P7 chemical analysis
report. Though PW.1, an independent witness, was examined to prove
search and seizure, this witness turned hostile to the prosecution.
7. Though the case set up by the appellant – accused was that he was
not arrested from his house, the trial court considering Exts.P1, P2 and
other documents found that the appellant was residing in the house from
where the contraband articles were seized. The question to be considered
in this appeal is whether the evidence of PWs.2 and 3 would show that the
house from where the contraband articles were seized belongs to the
CRL.APPEAL NO.2242/2005 5
appellant.
8. The evidence of PW.3 would show that there were more than one
excise officials with him during the relevant time, but only PW.2 has
signed Ext.P2 mahazar. That apart, PW.3 had admitted that some of the
people of the locality were present at the time of detection of the offence,
but none of them were examined and except PW.1, the other witnesses
were given up by the prosecution. PW.1 had turned hostile to the
prosecution. In this context, the case set up by the appellant assumes
relevance. He had stated that the house from where the contraband
articles were seized did not belong to him and that he was residing at
Thundil house. It is also to be noted that PWs.2 and 3 had admitted that
they had not verified any Panchayat record or any other documents to
show that the house from where the contraband articles were seized
belonged to the appellant. Further, though PW.3 admitted that he had
prepared the search memo and forwarded a copy of the same to the court,
there was no record before the court below showing receipt of such a
search memo. Though the trial court considered this point, the trial court
accepted the evidence of PWs.2 and 3. in the light of Exts.P1, P2 and P3.
As per Section 31 of the Abkari Act,. before conducting search of a
residential house, it is obligatory on the part of the excise officials or any
CRL.APPEAL NO.2242/2005 6
police officer to prepare a search memo in the absence of a search warrant.
This mandate contemplated in the above section is for procedural
conformity of the action of the excise or police officials. Apart from the
above, though PWs.2 and 3 had stated that sample was taken from the
contraband articles at the spot, there is no indication in Ext.P2 mahazar
regarding taking of the sample. It has also come out in evidence that no
seals or labels were seen on MO.1 plastic cans containing the contraband
articles and MO.2 empty plastic cans when those were produced before the
court below. These circumstances create reasonable doubt regarding the
alleged search and seizure made by PW.3.
9. There is also no evidence to show that the contraband articles
were produced before the court below in time as no thondi list was
produced. This was justified by the trial court by stating that the thondi
list might have been misplaced in the lower court. This finding cannot be
accepted as it is obligatory on the part of the prosecution to prove that the
contraband articles and the samples were produced before the court in time
as per the provisions of the Abkari Act and the Kerala Excise Manual. If
the contraband articles and the samples were not produced before the court
in time, it was duty of the prosecution to explain the delay and prove that
the contraband articles and the samples were kept in safe custody so as to
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rule out the chance of substitution. This principle has been laid own by
this Court in the decision reported in Narayani v. Excise Inspector, 2002
(3) K.L.T. 725. Neither PW.2 nor PW.3 had given evidence as to where
the contraband articles were kept till the same were produced before the
court below. In the above circumstances, this Court is of the view that the
finding of the trial court that the prosecution succeeded in proving that the
appellant was found in possession of 12 litres of arrack cannot be
accepted. There was also another charge that the arrack found in the
possession of the appellant was for the purpose of sale. If that be so, it
was the duty of the prosecution to prove that the contraband articles found
in the possession of the appellant were in connection with export, import,
transport or transit. In this context, the judgments of this Court reported
in Surendran v. Excise Inspector, 2004(1)K.L.T. 404 and Sudhepan @
Aniyan v. State of Kerala, 2005(2)K.L.D. (Cri) 631 are relevant. In the
above two judgments, this Court has categorically held that to attract an
offence punishable under Section 55(a) of the Abkari Act, the prosecution
must prove that possession of the contraband articles was in connection
with export, import, transport or transit. The prosecution has not adduced
any evidence to show that the contraband articles found in the possession
of the appellant were for sale. Hence, even if, for argument’s sake, the case
of the prosecution is accepted, the appellant can be found guilty only
CRL.APPEAL NO.2242/2005 8
under Section 8(1) read with Section 8(2) of the Abkari Act. This Court
has already found that the trial court went wrong in accepting the evidence
of PWs.2 and 3 to find the appellant guilty of the charges levelled against
him. Hence, the appellant cannot be found guilty under Section 8(1) read
with Section 8(2) of the Abkari Act either. The impugned judgment is,
therefore, liable to be set aside.
10. Accordingly, the impugned judgment is set aside and the
appellant is acquitted of all the charges levelled against him. The bail
bonds executed by the appellant shall stand cancelled. If the appellant has
remitted any amount towards fine, that shall be refunded to him as per law.
The Crl. Appeal is allowed as above.
(K.THANKAPPAN, JUDGE)
sp/
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