IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 6TH JANUARY 2009 / 16TH POUSHA 1930 Crl.Rev.Pet.No. 4536 of 2007() ------------------------------ CRA.738/2005 of ADDL.SESSIONS COURT-II, KOZHIKODE SC.643/2003 of ASSISTANT SESSIONS COURT, QUILANDY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- SIVADASAN, S/O CHOYIKUTTY, PANAYULLAKANDY, UNNIKULAM, KOYILANDY BY ADV. SRI.ANIL THOMAS(T) SMT.K.V.RESHMI RESPONDENT(S): COMPLAINANT/STATE -------------------------------- 1. THE EXCISE INSPECTOR, BALUSSERY EXCISE RANGE. 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/01/2009, THE COURT ON 06/01/2009 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO.4536 OF 2007 ------------------------------------------ Dated 6th January 2009 O R D E R Revision petitioner is accused in S.C.643/2003 on the file of Sessions court, Koyilandy. Prosecution case was that on 6/2/2001 while PW1 the Assistant Excise Inspector along with PW2 Preventive officer and other Excise Guards of Balussery range were on patrol duty, at about 5.45 p.m he got information that a person by name Sivadasan is conducting sale of foreign liquor transported from Mahi in a bicycle and while they were waiting near Ithilattukavu temple, revision petitioner came riding in a bicycle and finding the excise party he stopped 20 meters away from the place where jeep was parked and getting suspicious PW1 intercepted him and on examination he found three bottles of Mens Club Grape Brandy of 180 ml. each enclosed in a plastic basket kept in the carrier of the bicycle and when one of the bottles was opened and tasted, it was found that it is Indian Made Foreign Liquor which was being CRRP 4536/07 2 transported from Mahi as there is a label that it is for sale only in within Pondicherry. PW1 prepared Ext.P1 mahazar and arrested revision petitioner and along with him reached the excise office and prepared Ext.P2 crime and occurrence report and registered the case. Petitioner was produced before the Magistrate along with Ext.P2 on the same day and Mos.1 and 2 series of bottles and the sample prepared were produced before the court and Ext.P3 forwarding note was submitted. Sample was forwarded to chemical laboratory and obtained Ext.P5 report. Ext.P4 sketch of the scene of seizure was prepared by PW4 Village Officer. PW5 Excise Inspector after completing investigation laid the charge. Revision petitioner pleaded not guilty, when charge for the offence under Section 55 (a) of Abkari Act was framed and read over to him. Prosecution examined five witnesses and marked five exhibits and identified Mos.1 and 2. Though petitioner was asked to enter on his defence and adduce evidence, no defence evidence was adduced. Learned Assistant Sessions Judge thereafter found the petitioner guilty, convicted and sentenced him to simple imprisonment for two years and fine of CRRP 4536/07 3 Rs.1,00,000/- and in default simple imprisonment for one year for the offence under Section 55(a) of Abkari Act. Petitioner was granted set off under Section 428 of Indian Penal Code. Though petitioner challenged the conviction before Sessions court, Kozhikode in Crl.A.738/05, learned Additional Sessions Judge on re-appreciation of evidence confirmed the conviction but modified sentence to rigorous imprisonment for three months and fine of Rs.1,00,000/- and in default simple imprisonment for one year. Revision petition is filed challenging conviction and sentence. 2. Learned counsel appearing for revision petitioner argued that there is absolutely no reliable evidence to prove that revision petitioner was transporting Indian Made Foreign Liquor from Mahi as found by courts below. It was pointed out that though prosecution case is that revision petitioner was transporting three 180 ml bottles of Indian Made Foreign Liquor in a bicycle, bicycle was not produced before the court and no investigation was conducted to fix the ownership of the bicycle. It was argued that the case was foisted by Excise officials on account of the dispute of revision petitioner with CRRP 4536/07 4 neighbouring abkari shop owner and on the failure of revision petitioner to disclose the name of the owner of bicycle which was found parked near the shop. Even tough Ext.P1 seizure mahazar shows that seizure was in the presence of independent witnesses and were cited as witnesses, they were not examined and there is no reason for their non examination except the fact that if they were examined they would have disclosed the truth that they did not witness the seizure and therefore the conviction is not sustainable. 3. Learned Public Prosecutor submitted that there is no reason to interfere with the conviction. 4. Ext.P1 seizure mahazar prepared by PW1 shows that PW1 had received information that revision petitioner is transporting Indian Made Foreign Liquor from Mahi in a bicycle. PW1 along with PW2 and other Excise Guards and Preventive Officer were waiting at the spot. Ext.P1 shows that while so, revision petitioner came in a bicycle and finding the patrol party he stood perplexed and getting suspicious PW1 intercepted him and on examination found three bottles of Indian Made Foreign Liquor in 180 ml CRRP 4536/07 5 bottles and the bottles were seized and petitioner was arrested in the presence of Abdurazack and Chappotti Nair who were seen signed in Ext.P1 mahazar as attesting witnesses. But though the said independent witnesses were cited as Cws.6 and 7 they were given up and were not examined at the time of trial. As rightly pointed out by the learned counsel appearing for revision petitioner, in the light of the contentions raised by the revision petitioner, non examination of independent witnesses is fatal to the prosecution case. If at least one of that independent witnesses was examined and he turned hostile to the prosecution, prosecution could have contended that independent witness was won over. True the fact that independent witness turned hostile to the prosecution by itself is not a ground to disbelieve the evidence of Excise officials or to discard the prosecution case. But it is entirely different, none of the independent witnesses cited, they were not examined by the prosecution without any reason. If, in fact, revision petitioner was intercepted and Mos.1 and 2 and other bottle from which the sample was prepared were found in the CRRP 4536/07 6 bicycle and revision petitioner was riding the bicycle at that time prosecution should have examined at least one of the independent witnesses to prove that incident. Though evidence of Pws.1 and 2 need not be disbelieved on that sole ground, while appreciating the case non examination of independent witness is definitely a relevant fact which cannot be ignored. 5. Though prosecution has a case that Mos1 and 2 and other bottle were found on the back side of the bicycle and bicycle was seized as stated in Ext.P1 mahazar, bicycle was not produced before the court. At the time of evidence PW1 deposed that it was produced by Excise Assistant Commissioner. But when prosecution case is that bottles containing Indian Made Foreign Liquor were transported by revision petitioner were seized from the bicycle, at least at the time of evidence prosecution should have produced the bicycle and non production of the bicycle is fatal to the prosecution case. 6. Evidence of Pws.1 and 2 and 4 do not establish that any investigation was conducted to trace out the ownership of the bicycle and to find out whether it belongs to the revision petitioner. It is CRRP 4536/07 7 crucial because what was contended by revision petitioner is that a bicycle was found parked near his barber shop and petitioner was asked to disclose its ownership and when he expressed ignorance, under the influence of the abkari shop owner, case has been foisted against revision petitioner. In the light of the contentions, investigation should have made to find out the ownership of the bicycle. 7. When all these facts are taken into consideration, based on the evidence of Pws.1 and 2, the official witnesses of the Excise department alone, it is not possible to hold that revision petitioner was riding a bicycle carrying three bottles of Indian Made Foreign Liquor from Mahi. It is to be borne in mind that distance from Mahi to the place of seizure is not short and it cannot be believed that revision petitioner would ride the bicycle all the distances to transport three 180 bottles of Indian Made Foreign Liquor as alleged by the prosecution. When prosecution did not even examine the independent witnesses, considering the quantity of the liquor seized, petitioner is at least entitled to the benefit of doubt, for the failure to examine CRRP 4536/07 8 independent witnesses. In such circumstance, conviction of the revision petitioner for the offence under Section 55 (a) of Abkari Act is not sustainable as the offence is not proved beyond reasonable doubt. Revision petition is allowed. Conviction of revision petitioner for the offence under Section 55 (a) of Abkari Act is set aside. Petitioner is found not guilty of the offence. He is acquitted. Bail bond executed by him stands cancelled. M.SASIDHARAN NAMBIAR, JUDGE. uj.