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Sivasankara Pillai vs State Of Kerala on 3 August, 2007

Kerala High Court
Sivasankara Pillai vs State Of Kerala on 3 August, 2007
       

  

  

 
 
  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

CRL.APPEAL NO.2242/2005 2

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

CRL.APPEAL NO.2242/2005 7

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/

CRL.APPEAL NO.2242/2005 9

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