IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 Crl.Rev.Pet.No. 2 of 2001() --------------------------- CRA.132/1997 of SESSIONS COURT, ALAPPUZHA CC.185/1995 of JDUL.MAGISTRATE OF FIRST CLASS, RAMANKARI .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------------------------------------------------- 1. PONNAPPAN, S/O.CHAKRAPANI, PUTHUVELIL VEETTIL, NEDUBHAGOM MURI, NEDUMUDI VILLAGE. 2. CHELLAMMA, D/O.PARU, PUTHUVELIL VEETTIL, NEDUBHAGOM MURI, NEDUMUDI VILLAGE. BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENT: --------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA. (EXCISE INSPECTOR, KUTTANAD) BY PUBLIC PROSECUTOR. SRI.B.JAYASURYA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/ 07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- Crl.R.P.No. 2 of 2001 ----------------------------------------- Dated this the 9th July, 2009 O R D E R This appeal is filed against conviction and sentence passed against petitioners 1 and 2 under Section 55(a) and (b) of the Abkari Act to undergo rigorous imprisonment for 6 months and to pay a fine of Rs.1000/- each under Section 55(a) of the Abkari Act and the accused are also sentenced to undergo rigorous imprisonment for 6 months and a fine of Rs.1000/- each under Section 55(b) of the Abkari Act and in default of payment of fine, the accused shall undergo simple imprisonment for one month each. The sentence was ordered to run separate. The above conviction and sentence passed by Magistrate court were confirmed in appeal by Sessions Court and hence, this revision. 2. According to prosecution, on 9.10.1994 early morning, PW5 got information that manufacture of illicit arrack was being done in the house of one Chakrapani and a search Crl.RP.2/01 2 memo was sent to the court for search of the house and PW5, along with PW4, proceeded to the house and they found that in the kitchen, first and second accused were engaged in distillation of arrack. They are son and mother. They were arrested from the spot at 5.45 a.m and the articles were seized under Exhibit P5 mahazar. A crime was registered against the accused under Section 55(a), (b) and (g) of the Abkari Act. FIR was lodged and it is Exhibit P6. The search and seizure were effected in the presence of PW2 and PW3. PW1 is the Excise Inspector, who submitted the occurrence report, Exhibit P1, based on which, the court took cognizance of the offences against the accused. 3. To prove the prosecution case, prosecution examined PW1 to PW5 and marked Exhibits P1 to P6 and MO1 series. They were convicted for offences under Section 55(a) and (b) of the Abkari Act by learned Magistrate, before whom the trial was conducted. Reliance was placed upon evidence of PW4 and PW5, who are police constable and Sub Inspector and also on the portion of evidence given by PW2 and PW3 to come to a finding that search and seizure were proved beyond reasonable doubt. Crl.RP.2/01 3 4. Heard both sides. Perused records. Both the accused are seen convicted for offences under Sections 55(a) and 55(b) of the Abkari Act for possession and manufacture of liquor. To prove possession and manufacture, evidence of PW2 to PW5 are relied upon by the prosecution. Evidence of PW4, police constable, who allegedly witnessed search and seizure stated in chief examination that PW4 and PW5 went to the house of one Chakrapani and they saw his wife and son manufacturing liquor. In the cross-examination he stated that on reaching the place of occurrence the house was found closed and the door was locked. Second accused opened the door and it was then that he saw her for the first time. 5. However, in the evidence of PW5, he deposed that he went through the back side of the house of Chakrapani, when kitchen door was found open and they entered the kitchen. He also said that he saw accused 1 and 2 being engaged in manufacturing of liquor. If the evidence of PW4 is accepted, the officials could not have witnessed manufacturing being done in the kitchen. The court cannot accept the version which supports prosecution and reject the evidence which is against. Crl.RP.2/01 4 6. The appellate court also held that there is contradiction in the evidence relating to the entry into the house and that it was not clarified also. But according to appellate court the witnesses were speaking after three years of the incident and no value was attached to the contradiction. It has to be borne in mind that the contradiction is on a material fact. A doubt is raised on the evidence given by PW4 and PW5 regarding their witnessing manufacture by the accused. 7. In the absence of an explanation from the witnesses or the prosecution for the contradiction in evidence of PW4 and PW5 the court ought not to have treated the discrepancy lightly. In the light of the major contradiction discussed above, there is no conclusive proof regarding the manufacture of liquor from the house of Chakrapani. This is a case where the accused has put forward a case of false implication. 8. According to accused, one police constable, Navas used to go to the shop of Vijayamma, who is his neighbour but Vijayamma was not in good terms with accused. She had lodged many complaints against accused. Therefore, Vijayamma, with the assistance of said Navas, was foisting a false case against accused. It has come out from the evidence Crl.RP.2/01 5 of independent witnesses that Vijayamma used to lodge cases against accused and they were on inimical terms. It is also come out in evidence that there was a police constable by name Navas in the locality. 9. It is admitted that the house from where the articles were seized belonged to Chakrapani, who is the husband of second accused and father of first accused. According to PW2, an independent witness, Chakrapani was present at the time of seizure. PW2 is not declared as hostile. It is also to be noted that even according to prosecution, house belonged to Chakrapani. This fact is admitted by the relevant witnesses. There can be no doubt that the house belonged to Chakrapani. 10. As already held, the fact whether accused 1 and 2 were found inside the kitchen where the alleged manufacturing was going on is shabby and it cannot be held on the basis of the contradictory evidence that accused were manufacturing liquor inside the kitchen. Therefore, resultantly there is evidence only for presence of accused 1 and 2 in the premises. The owner of the house being Chakrapani, he is legally liable to explain possession of the contraband articles in the house. 11. Legally constructive possession of house and the Crl.RP.2/01 6 articles will be on the owner of house, who is in possession of the house. But the said person was not even cited as an accused or examined in this case. Merely because two persons were present in the house, criminal liability for possession cannot be attached to them. Evidence is lacking regarding exclusive possession of the contraband article with the first and second accused. In such circumstances, accused 1 and 2 cannot be held guilty of possession. Both the courts have failed to consider this aspect in the right perspective. 12. Learned counsel for accused also contended that the search conducted in the house of Chakrapani was illegal since it is in contravention of provisions contained in Section 31 of the Abkari Act. In the light of the decision reported in K.L.Subhayya v. State of Karnataka (AIR 1979 SC 711), violation of the provisions relating to search in a place will vitiate the conviction. The formalities under Section 31 are to be complied with, before proceeding to search. But, in this case, it is only stated by PW5 that a search memo was prepared and sent to the court. But, no evidence is produced to establish this fact. No search memo was found in the case records also. In addition to that, a perusal of the evidence of PW5 would Crl.RP.2/01 7 show that he prepared the search memo after the crime was detected. 13. PW5 gave evidence in cross-examination that it is only after he was convinced about commission of offence at the scene that he prepared the search memo. The search memo is expected to be sent prior to the conduct of the search and not after entering into the place and detection of the crime. PW5 clearly and cogently gave evidence that it is only after being convinced that he had sent the search memo. 14. However, the appellate court held in the judgment as follows: “True, the search memo was not produced but the version of PW5 in this regard stands unspiked in the cross-examination. Moreover as rightly observed by the trial court irregularity in the course of investigation would not result in the rejection of the evidence adduced, although the same has to be appraised with caution as noted by the Apex Court in State of Rajasthan-vs- Kishore (1996 Crl.Law Journal 2003).” 15. The appellate court proceeded as though the non production of preparation of search memo on production of the same is only an irregularity in the investigation. The Supreme Crl.RP.2/01 8 Court in the above decision was dealing with a case under the Mysore Excise Act. Sections 53 and 54 and interpreting Section 54 which corresponds to Sections 30 and 31 of the Abkari Act and it was held that the violation of the provision rendered the search completely without jurisdiction and as a logical corollary, vitiated the conviction. The relevant portion of the above decision of the Supreme Court reads as follows: “This, therefore, renders the entire search without jurisdiction and as a logical corollary vitiates the conviction. We feel that both Ss.53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill-founded or frivolous prosecution or harassment. The point was taken before the High Court which appears to have brushed aside this legal lacuna without making any real attempt to analyse the effect of the provisions of Sections 53 and 54. The High Court observed that these two sections were wholly irrelevant. With due respect, we are unable to approve of such a cryptic approach to a legal question which is of far-reaching consequences.” 16. In the light of the above, it cannot be said that the violation of Section 31 is a mere irregularity in the investigation Crl.RP.2/01 9 and the decision of the Supreme Court in State of Rajasthan- vs-Kishore (1996 Crl.Law Journal 2003) ought not to have been applied to the facts of this case by the appellate court. On an appreciation of the contentions raised, I find that the conviction was entered on the basis of perverse findings. The appellate court also committed an illegality in holding that the violation of the provisions relating to the search was only an irregularity in the light of the dictum laid down in another decision of the Supreme Court in K.L.Subhayya v. State of Karnataka (AIR 1979 SC 711) also. In the above circumstances, conviction and sentence passed against the appellants cannot be sustained. In the result, the conviction and sentence is set aside. Appellants are found not guilty of offences under Sections 55 (a) and (b) of the Abkari Act and they are acquitted of the said offences. They are set at liberty forthwith. The Criminal Revision Petition is allowed. Sd/- K.HEMA, JUDGE vgs. /True copy/ P.A to Judge Crl.RP.2/01 10 K.HEMA, J. ------------------------------ Crl.R.P.NO.2 of 2001 ------------------------------ O R D E R 9.7.2009