{"id":164713,"date":"2007-02-06T00:00:00","date_gmt":"2007-02-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rajan-vs-state-of-kerala-represented-by-on-6-february-2007"},"modified":"2014-08-30T21:29:49","modified_gmt":"2014-08-30T15:59:49","slug":"rajan-vs-state-of-kerala-represented-by-on-6-february-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rajan-vs-state-of-kerala-represented-by-on-6-february-2007","title":{"rendered":"Rajan vs State Of Kerala Represented By on 6 February, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
Rajan vs State Of Kerala Represented By on 6 February, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL A No. 1377 of 2006()\n\n\n1. RAJAN S\/O.RAMAKRISHNAN,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA REPRESENTED BY\n                       ...       Respondent\n\n                For Petitioner  :ADV.KURIKOSE (STATE BRIEF)\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice K.THANKAPPAN\n\n Dated :06\/02\/2007\n\n O R D E R\n                                 K.THANKAPPAN, J.\n\n                 ---------------------------------------------------------\n\n                  CRL. APPEAL  NOS. 1377 & 1598 OF 2006\n\n                 ---------------------------------------------------------\n\n\n                      Dated this the 6th day of February, 2007\n\n\n                                       JUDGMENT\n<\/pre>\n
        The appellants are accused Nos.2 and 1 in Sessions Case No.1168 of<\/p>\n
2005 on the file of the Additional  Sessions  Court for trial of Abkari  Act<\/p>\n
Cases,   Neyyattinkara.   Both   the   appellants   faced   trial   for   offence<\/p>\n
punishable under Section 55(a) and (i) of the Abkari Act.\n<\/p>\n
        2.  The prosecution case against the appellants was that on 4.5.2004<\/p>\n
PW.3,   the   Sub   Inspector   of   Police,   Nemom   Police   Station   on   getting<\/p>\n
information   regarding   sale   of   arrack     in   the   property   belonging   to   one<\/p>\n
Madhavan Nair @ Melom situated near Pamamcode Parayil Temple, went<\/p>\n
to   the   place   of   occurrence   and   found   accused   No.1,   appellant   in   Crl.\n<\/p>\n
Appeal No.1598 of 2006,   in  possession of a 3 litre bottle containing 1 =<\/p>\n
litres   of   arrack   and   a   glass   tumbler   and   accused   No.2,   appellant   in   Crl.\n<\/p>\n
Appeal No.1377 of 2006,  carrying a 35 litre white jerry can containing  30<\/p>\n
litres of spirit, both engaged in the sale of arrack.   It is the further case of<\/p>\n
the  prosecution   that  on  seeing  the  police  party, accused  No.1  abandoned<\/p>\n
the bottle and ran away from the place,  accused No.2 was arrested on the<\/p>\n
spot  and the contraband articles were seized on preparing Ext.P1 mahazar.\n<\/p>\n
CRL.A. NOS. 1377 & 1598\/2006                    2<\/span><\/p>\n
and both the accused were charge sheeted by the police.  To prove the case<\/p>\n
against the appellants, the prosecution examined PWs.1 to 3 and produced<\/p>\n
Exts.P1 to P7 and MOs. 1 and 2.  Ext.D1 was produced on the side of the<\/p>\n
defence.       On   closing   the   prosecution   evidence,   the   appellants   were<\/p>\n
questioned   under   Section   313   Cr.P.C.     The   appellants   denied   the<\/p>\n
allegations levelled against them.   Accused No.1 stated that he was in jail<\/p>\n
in   connection   with   another   Abkari   case   of   Kattakada   Police   Station   and<\/p>\n
that   he   was   arrested   on   production   warrant.       However,   the   trial   court<\/p>\n
found   both   the   appellants   guilty   under   Section   58   of   the     Abkari   Act,<\/p>\n
convicted   them   thereunder   and  sentenced    them   to   undergo   rigorous<\/p>\n
imprisonment   for   a   period   of   4   years   each   and   to   pay   a   fine   of<\/p>\n
Rs.1,00,000\/- each and in default of payment of fine, to undergo rigorous<\/p>\n
imprisonment  for   a  further   period   of   six   months   each.     Set   off   was   also<\/p>\n
allowed   against   the   substantive   term   of   imprisonment.       The   above<\/p>\n
conviction and sentence are challenged in these appeals.\n<\/p>\n
       3.     Both   these   appeals   are   filed   through   the   jail   authorities   and   a<\/p>\n
State   Brief   has   been   appointed   in   each   appeal   to   defend   the   appellants.\n<\/p>\n
Heard   the   learned   counsel   appearing   for   the   appellants   as   well   as   the<\/p>\n
learned Public Prosecutor.\n<\/p>\n
CRL.A. NOS. 1377 & 1598\/2006                    3<\/span><\/p>\n
        4.    Learned  counsel  appearing  for   the   appellants   have  raised  three<\/p>\n
contentions before this Court: (i) the trial court went  wrong in finding the<\/p>\n
appellants  guilty on  the  basis  of the evidence   of  PWs.2 and  3  who   were<\/p>\n
police officials  and whose evidence was contradictory, (ii) PW.3, the Sub<\/p>\n
Inspector   of   Police   violated   the   provisions     of   the   Abkari   Act   and   the<\/p>\n
provisions   of   the   Kerala   Excise   Manual   while   seizing   the   contraband<\/p>\n
articles   and  taking   samples  for   chemical   analysis   and  (iii)   the   trial   court<\/p>\n
had   not   considered   the   fact   that   the   prosecution   witnesses   had   not<\/p>\n
identified  accused No.1 as the person who had ran away from the scene of<\/p>\n
occurrence.\n<\/p>\n
        5.     The   prosecution   tried   to   prove   the   case   against   the   appellants<\/p>\n
through   the   evidence  of  PWs.2   and   3.     PW.3  was   the     Sub   Inspector   of<\/p>\n
Police, of Nemom Police Station who detected the crime.    He stated that<\/p>\n
on   getting   information   regarding   sale   of   arrack,   he   went   to   the   place   of<\/p>\n
occurrence   and   found   accused   No.1   in   possession   of     MO.2     bottle<\/p>\n
containing  arrack and accused No.2 holding  MO.1 plastic can containing<\/p>\n
spirit.     He   further   stated   that   on   seeing   the   police   party,   accused   No.1<\/p>\n
abandoned the bottle, jumped into the river and escaped from the place and<\/p>\n
accused No.2 was arrested.      This witness also stated that the contraband<\/p>\n
articles   were   seized   as   per   Ext.P1   mahazar   and   sample   was   taken   from<\/p>\n
CRL.A. NOS. 1377 & 1598\/2006                  4<\/span><\/p>\n
both MOs.1 and  2 for chemical analysis and then the material objects were<\/p>\n
produced  before the court.   Ext.P7 is the certificate of chemical analysis.\n<\/p>\n
This witness also deposed that from the statement given by accused No.2,<\/p>\n
it was revealed that the person who escaped from the scene of occurrence<\/p>\n
was   accused   No.1.     PW.3   further   stated   that   he   registered   crime   against<\/p>\n
both   the   accused   and   subsequently   accused   No.1   was   arrested   on<\/p>\n
production  warrant.\n<\/p>\n
       6.   The Head Constable who had accompanied PW.3  on the day of<\/p>\n
the incident was examined as PW.2.   This witness also stated that when he<\/p>\n
and PW.3 reached the spot accused  No.1abandoned  the bottle containing<\/p>\n
arrack and escaped from the place.   He also stated that accused No.2 was<\/p>\n
found holding a can which on examination was found to contain 30 litres<\/p>\n
of  spirit.      PW.2   further  stated   that  accused   No.2   informed     that   he   was<\/p>\n
only an employee of accused No.1  and that the person who raw away from<\/p>\n
the spot was accused No.1.\n<\/p>\n
       7.   The question  to  be considered,   in the  light  of   the contentions<\/p>\n
raised  by the  learned  counsel  for  the  appellants,  is  whether  the  evidence<\/p>\n
adduced by the prosecution is sufficient to identify  accused No.1  and also<\/p>\n
to hold that the appellants were in possession of MOs. 1 and 2.\n<\/p>\n
CRL.A. NOS. 1377 & 1598\/2006                    5<\/span><\/p>\n
        8.  The evidence of PW.3 would show that when he reached the spot,<\/p>\n
he saw one person jumping into the river and he was told by accused No.2<\/p>\n
that the person who fled from the scene of occurrence was accused No.1.\n<\/p>\n
PW.3 had  no  previous  acquaintance  with  accused   No.1.   Further,  Ext.P1<\/p>\n
mahazar would show that the seizure of the contraband articles and taking<\/p>\n
of   samples   were   witnessed   only   by   PW.2,   the   Police   Constable   and   no<\/p>\n
independent   witness   had   signed   Ext.P1.       The   only   independent   witness<\/p>\n
examined  turned  hostile  to the prosecution.   She   stated that she had not<\/p>\n
seen either of the accused at the spot  or seizure of the contraband articles<\/p>\n
as   spoken   to   by   PWs.2   and   3.     Hence,   the   case   of   the   prosecution   that<\/p>\n
PW.3   seized   MOs.1   and   2   in   the   presence   of   independent   witness   is<\/p>\n
doubtful.\n<\/p>\n
        9.  The evidence of PW.2 would show that he was not in a position<\/p>\n
to identify accused No.1 as the person who had ran away from the scene of<\/p>\n
occurrence   as   he   had   no   previous   acquaintance   with   accused   No.1.     He<\/p>\n
also stated that there were houses nearby, but PW.3 had not called anybody<\/p>\n
to  witness  the  action  taken by him.     When cross-examined,  this  witness<\/p>\n
stated   that   accused   No.1   while   escaping   from   the   scene   of   occurrence<\/p>\n
threw away MO.2 bottle containing arrack and the glass into the river and<\/p>\n
CRL.A. NOS. 1377 & 1598\/2006                    6<\/span><\/p>\n
thereafter the bottle was taken from  the river.   It is to be noted that PW.3<\/p>\n
had no such case.  He stated that accused No.1 abandoned MO.2 bottle at<\/p>\n
the spot.  PW.2 also stated that no independent witness was present at the<\/p>\n
time of detection of the crime.  Hence, the evidence of PWs.2 and 3 alone<\/p>\n
is not sufficient to prove that MOs.1 and 2 were seized from the appellants.\n<\/p>\n
        10.   With regard to the contention that PW.3 had not complied with<\/p>\n
the   provisions   of   the   Abkari   Act   and   the   Kerala   Excise   Manual     while<\/p>\n
effecting   seizure   of   the   contraband   articles   and   taking   samples,   the<\/p>\n
evidence of PW.2 is relevant.     It is seen from the evidence of PW.2 that<\/p>\n
accused  No.1  threw  away MO.2  bottle  and  the  glass  into  the  river  while<\/p>\n
escaping from the place. If that be so, sample could not have been taken<\/p>\n
from MO.2.   Though the trial court found  that there was no need to doubt<\/p>\n
the   integrity   of   the   witnesses,     there   is   lack   of   evidence   to   prove   that<\/p>\n
MOs.1 and 2 were seized from the appellants.   Further, though PW.2 had<\/p>\n
stated   that   samples   were   taken   by   PW.3   and   the   same   were   sealed   and<\/p>\n
labelled before sending to the court,  it was reported that the samples were<\/p>\n
not seen produced in the court .  In the above circumstances, this Court is<\/p>\n
of the view that the prosecution failed to prove that PW.3 complied with<\/p>\n
the provisions of the Abkari Act and the Kerala Excise Manual.   Further,<\/p>\n
the prosecution case was that  accused  No.1 was arrested after about three<\/p>\n
CRL.A. NOS. 1377 & 1598\/2006                   7<\/span><\/p>\n
months from the date of occurrence and that too on production warrant.  It<\/p>\n
has come out in evidence that accused No.1 was in jail in connection with<\/p>\n
another Abkari  case.   If that be so,  it was the  duty of the prosecution  to<\/p>\n
explain how accused No.1 was involved in the present case.   There was no<\/p>\n
explanation in this regard  from PWs.2 and 3.  It appears that the evidence<\/p>\n
adduced by the prosecution is not free of doubt.  Hence,  the appellants are<\/p>\n
entitled to the benefit of doubt.\n<\/p>\n
       11.   On an overall appreciation of the entire evidence, this Court is<\/p>\n
of   the   view   that   the   prosecution   has   not   succeeded   in   proving   the   case<\/p>\n
against   the   appellants.     In   the   above   circumstances,   the   conviction   and<\/p>\n
sentence ordered against the appellants are set aside and the appellants are<\/p>\n
found   not   guilty   of   the   offence   alleged   against   them.         The   appellants,<\/p>\n
accused Nos.2 and 1 in Sessions Case No.1168 of 2005 on the file of the<\/p>\n
Additional Sessions Court for trial of Abkari Act Cases, Neyyattinkara are<\/p>\n
acquitted.   They   shall   be   released   forthwith,   if   they   are   not   wanted   in<\/p>\n
connection with any other case.\n<\/p>\n
       The Crl. Appeals  are allowed as above.\n<\/p>\n
                                          (K.THANKAPPAN, JUDGE)<\/p>\n
sp\/<\/p>\n
CRL.A. NOS. 1377 & 1598\/2006    8<\/span><\/p>\n
                                     K.THANKAPPAN, J.\n<\/p>\n
                                     CRL.A.NOS.1377 & 1598<\/p>\n
                                             OF 2006<\/p>\n
                                          JUDGMENT<\/p>\n
                                     6TH FEBRUARY, 2007.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Rajan vs State Of Kerala Represented By on 6 February, 2007 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-164713","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nRajan vs State Of Kerala Represented By on 6 February, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/rajan-vs-state-of-kerala-represented-by-on-6-february-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rajan vs State Of Kerala Represented By on 6 February, 2007 - 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