IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 1005 of 2007(A)
1. VARGHESE, S/O.KALOSE
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :ADV.P.V.VIJAYA KUMAR (STATE BRIEF)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.THANKAPPAN
Dated :14/08/2007
O R D E R
K. THANKAPPAN, J.
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CRL.A.NO.1005 OF 2007-A
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Dated this the 14th day of August, 2007.
JUDGMENT
Appellant is the 2nd accused in S.C.No.287/2006 on the file of
the Additional Sessions Judge (Adhoc)-II, Kalpetta. He faced trial
for an offence punishable under Section 55 (a) of the Abkari Act
along with the 1st accused on the allegation that both the accused
were found in possession of 1.5 liters of arrack and two disposable
glasses on 23.7.2005 at about 7.05 p.m at a place called C.R.P.
Kunnu in Periya village within the limits of Thalappuzha Police
Station in contravention of the provisions of the Abkakri Act. To
prove the case against the appellant and the other accused,
prosecution examined 7 witnesses and relied on Exts.P1 to P7. MOs
1 and 2 were also produced. After closing of the prosecution case,
the appellant and the other accused were questioned under Section
313 of the Code of Criminal Procedure. The appellant and the other
accused denied the prosecution charge. However, the trial court
relying on the evidence adduced by the prosecution found the
appellant and the 1st accused guilty under Section 58 of the Abkari
Act and they were convicted thereunder and sentenced to undergo
CRL.A.NO.1005/2007 2
R.I for one year each and also to pay fine of Rs. One lakh each
with default sentence of payment of fine, to undergo R.I for three
months. The trial court also allowed set off under Section 428 of
the the Code. The conviction and sentence ordered against the
appellant is challenged in this appeal.
2. Since the appeal is filed through the jail authorities and the
appellant is not having a counsel of his own choice, a member
from the State brief panel has been appointed to argue the case for
and on behalf of the appellant. Heard the learned counsel
appearing for the appellant and the Public Prosecutor. The learned
counsel appearing for the appellant had taken the following
contentions before this Court to challenge the judgment of the trial
court. Firstly it is contended that the trial court went wrong in
placing reliance on the evidence of Pws 1 and 2, the Police Officials,
alone to find the appellant guilty of the charge as the independent
witnesses examined by the prosecution did not support the
prosecution case at all. Secondly, it is contended that the trial
court committed a serious error in finding the appellant guilty
under Section 58 of the Abkari Act as there was no evidence before
the court to prove that the appellant was found in possession of any
CRL.A.NO.1005/2007 3
arrack whereas, the charge was that he was found in possession of
two disposable glasses. Thirdly it is contended that even if the
evidence of Pws 1 and 2 is accepted, the prosecution had not
succeeded in proving that the appellant was in physical possession
of MO1, from which the sample alleged to have been taken by
PW1.
3. Before considering the contentions of the learned counsel, it
has to be noted that, as per the prosecution charge, PW1 – the
Sub Inspector of Police and the other police officials on getting
information that the appellant and the 1st accused were engaged in
selling arrack at C.R.P.Kunnu and on reaching that place, PW1 and
other police officials have noted that A1 was holding MO1 cannas,
which contained 1.5 liters of arrack. Further case of the
prosecution is that when the police party reached at the place, the
appellant was holding two disposable glasses and the allegation is
that both the 1st accused and the appellant were engaged in selling
arrack at the place of the incident. The evidence of Pws 1 and 2
would show that the sample alleged to have been taken from MO1
cannas has been got analysed and as per Ext.P7 chemical report it
was reported that the sample contained 37.02% and 36.81% of
CRL.A.NO.1005/2007 4
ethyl alcohol by volume and hence the appellant committed the
offence. The trial court relied on the evidence of PW2 – the constable,
who accompanied PW1 at the time of detection of the crime. The
trial court further relied on the evidence of PWs 3 and 4 – the two
Sub Inspectors of Police, who conducted part of the investigation
and filed the final charge. The question to be considered in this
appeal is whether the prosecution had succeeded in proving that the
appellant was found in possession of any arrack and had committed
any offence punishable either under Section 58 of the Abkari Act or
not. In this context, the charge framed against the appellant and
the other accused has to be noted. The charge framed by the
court reads as follows:
“That you on 23.7.2005 by 7.00 p.m was
found at C.R.P Kunnu in Periya 39, in possession
of 1.5 liters of arrack and two glasses and
thereby you have committed the offence punishable
u/s.55(a) of the Abkari Act.
4. A reading of the charge itself would show that the appellant
was also charged for the possession of 1.5 liters of arrack and two
glasses. But if the evidence of Pws 1 and 2 has been analysed,
it could be seen that either PW1 or Pw2 had no case that the
appellant was in possession of either Mo1 or any arrack which
CRL.A.NO.1005/2007 5
contained in MO1. The evidence of the two witnesses shows that
MO1 cannas, which contained arrack, was in possession of the 1st
accused. Even though PW1 had stated before the court that
MO2, two disposable glasses, were seized from the appellant and
smell was emanating from the glasses but, that fact was not
recorded in Ext.P2 mahazar by which MO1 cannas and MO2 glasses
were alleged to have been seized by PW1. In Ext.P2 it is only
stated that ”
There is no other statement regarding speciality of the glasses in
Ext.P2. That apart, the prosecution case itself was that PW1 had
got information that two persons were engaged in selling arrack at
C.R.P.Kunnu. But when they reached at the place, they could seen
a building in the open place and the 1st accused was in possession of
MO1, which contained arrack. There was no evidence before the
court to show that the appellant and the other accused were
engaged in selling arrack to anybody or there was no recovery of
any money either from the appellant or from the 1st accused.
CRL.A.NO.1005/2007 6
Though Pws 1 and 2 had a case that both the appellant and the
the 1st accused were under the influence of arrack, no evidence
has been adduced to prove that allegation. In Ext.P4 thondi list it is
specifically stated that ”
“. There is no other specification of
these two disposable glasses. It is also to be noted that when PW1
was cross examined, he had admitted the fact that there was no
seal or label on MO2 glasses so as to hold that these glasses were
seized from the appellant. Even if these glasses were seized,
there was no evidence to show that the appellant was engaged in
selling arrack along with the 1st accused and there was no evidence
before the court to hold that the appellant was holding any arrack
along with A1. In this context, the trial court held in paragraph 14
of the judgment that the circumstances under which the appellant
has been found in the company of 1st accused would prove that he
was also in joint possession of Mo1.
5. This Court is not in a position to uphold the reasoning of the
trial judge regarding joint possession of MO1 with the 1st
accused. Even to prove possession of any contraband, it has to
be proved that such possessor or the person possessing the
CRL.A.NO.1005/2007 7
substance should have a control over the said contraband or
even he could be with perfect control over such property. In this
context, the evidence of Pws 1 and 2 would not show that the
appellant has any control over MO1, which contained arrack, as
alleged by the prosecution. At the same, the prosecution case was
that MO1, which contained arrack, was in the possession of A1 and
not in the possession of the appellant. If so, the finding of the trial
court that the appellant was in possession of MO1, which
contained arrack, is not based on any legally acceptable evidence.
Two disposable glasses have been found in possession of the
appellant by itself would not attract any offence as contemplated
either under Sections 8 or 58 of the Abkari Act. Even if the
prosecution could prove that MO1 contained 1.5 liters of arrack, the
offence could attract Section 8 and not Section 58 of the Act. In the
light of that fact also, the finding entered by the appellant is not
sustainable in law.
6. Without considering the other contentions raised by the
learned counsel appearing for the appellant, this Court is of the view
that the appellant is entitled for clear acquittal of the charge.
Accordingly, the appeal is allowed. The judgment of the trial court
CRL.A.NO.1005/2007 8
is set aside and the appellant, the 2nd accused, in S.C.No.287/2006
on the file of the Additional Sessions Judge (Adhoc)-II, Kalpetta, has
to be released forthwith unless he is required to be kept in jail in
connection with any other case.
Ordered accordingly.
K. THANKAPPAN, JUDGE.
cl
CRL.A.NO.1005/2007 9
K. THANKAPPAN, J.
CRL.A.NO.1005 OF 2007-A
JUDGMENT
14th August, 2007.