IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 CRL.A.No. 894 of 2003() ---------------------------------- SC.211/2000 of IIIrd ADDL. SESSIONS COURT (FAST TRACK COURT-I), THRISSUR .................... APPELLANT(S): 1ST ACCUSED: --------------------------------------------- JOMON, S/O. POULOSE, VALLURAN HOUSE, KORATTY KIZHAKKUMMURI VILLAGE, NALUKETTU. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): COMPLAINANT & STATE: -------------------------------------------------------------- 1. SUB INSPECTOR OF POLICE, VETTILAPARA. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.C.S.HRITHWIK, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/04/2010, ALONG WITH CRL.A.NO.935 OF 2003, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. APPEAL Nos.894 of 2003 & 935 of 2003 ------------------------------- Dated this the 6th day of April, 2010. J U D G M E N T As these two appeals are arising out of one and the same judgment dated 17.5.2003 in S.C.No.211/00 of the Court of IIIrd Addl. Sessions Judge (Fast Track Court-I), Thrissur, though by different accused and as the question of facts and law are identical, these appeals are heard together and being disposed of by this common judgment. 2. Crl.A.No.894/03 is preferred by the first accused, whereas Crl.A.No.935/03 is preferred by accused nos.2, 3, 4, 5 and 9, challenging the above judgment by which each of the appellants are convicted u/s.55(a) and 55(i) of Abkari Act, r/w. S.34 of IPC. 3. The prosecution case is that, accused nos. 1 to 9 in furtherance of their common intention to make unlawful gain by the sale of liquor, accused numbers 1, 2 and 6 transported 367 boxes with each box containing 48 bottles of 180 ml. each New Master Brandy, through lorry bearing Regn.No.KL-11-B-4068 Crl. APPEAL Nos.894 of 2003 & 935 of 2003 2 driven by accused nos.1, 2 and 6 from Bangalore and escorted by accused nos.3, 4, 5, 7 and 8 in a Tata sumo bearing Regn.No.KLT-7-636 of the 8th accused and Maruti Esteem car with Regn. No.KL-8-L-6777 of the first accused, brought the lorry from Bangalore to the Inspection Bangalow of Thumboormuzhi Dam, unloaded the liquor bottles and kept at the kitchen and in another room of Inspection Bangalow with the consent of the 9th accused on 24.7.1998. According to the prosecution, the above mentioned liquor bottles which containing the cartons were again loaded into the lorry on the morning of 25.7.1998 by the accused 1 to 5 and there by the accused 1 to 9 committed the offence punishable u/s.55(a) and (i) of the Abkari Act. 4. According to the prosecution, the above offence was detected by PW21, on the basis of the information received by him and he effected the seizure. Accordingly, crime No.37/98 was registered in the Vettilappara Police Station for the said offences. Crl. APPEAL Nos.894 of 2003 & 935 of 2003 3 5. On completing the investigation in the above crime, a report was filed in the Court of Judicial First Class Magistrate, Chalakudy, whereupon C.P.No.9/00 was instituted and by an order dated 17.2.00 in C.P.No.9/00, the learned Magistrate committed the case to the Sessions court, where the file was received as S.C.No.211/00 and thereafter the case was made over to the Court of Addl.Asst.Sessions Judge, Irinjalakuda, from where the case was transferred to the trial court for disposal. In the meanwhile, the 8th accused died and on the appearance of the remaining accused, a formal charge was framed which was read over and explained to them and they denied the charge and pleaded not guilty. Thereupon, the prosecution adduced its evidence, which consists of oral testimonies of PWs.1 to 22 and the documentary evidence such as Exts.P1 to P25. Though no defence witness was examined, two documents namely, Exts.D1 and D2 were produced from the part of the defence. During the trial, two objects were marked as material objects namely, M.O.(1) series ie., 180 ml. New Master Crl. APPEAL Nos.894 of 2003 & 935 of 2003 4 Brandy (48 numbers) and M.O.(2) Hard Board Carton. The incriminating circumstances and the evidence which emerged during the prosecution evidence, put to the accused u/s.313 of Cr.P.C. and they denied the same. The accused took a plea of total denial. On the basis of the rival pleadings and the materials and evidence on record, the trial court considered the following points:- 1. Whether the accused 1 to 7 and 9 were found in possession of 367 boxes with each box containing 48 bottles of 180 ml each Indian Made Foreign liquor ? 2. Whether the accused 1 to 7 and 9 have transported the liquor bottles through the lorry bearing Reg.No.KL-11-B 4068 ? 3. Whether the accused 1 to 7 and 9 are guilty of the offence under Sec.55(a) and (i) of the Abkari Act read with 34 IPC ? 4. What, if any, is the sentence to be passed against the accused 1 to 7 and 9 ? 6. After considering the materials and evidence on record, the trial court found that the accused nos.6 and 7 are not guilty and accordingly they were acquitted but accused nos.1 to 5 and 9 were found guilty. Each of them were sentenced to undergo Crl. APPEAL Nos.894 of 2003 & 935 of 2003 5 rigorous imprisonment for 3 years and to pay a fine of Rs.1 lakh each and in default to undergo rigorous imprisonment for 3 months each for the offence u/s.55(a) of Abkari Act, r/w. S.34 of IPC. The same sentence is also imposed against the said accused u/s.55(i) of Abkari Act r/w.34 of IPC as well and substantiative sentence is ordered to run concurrently. It is the above conviction and sentence that are challenged by the convicted accused by filing the above two separate appeals. 7. I have heard Adv.Shri.T.G.Rajendran, the learned counsel appearing for the appellants/accused in the above two appeals and also the learned Public Prosecutor. 8. The prosecution mainly relied upon the evidence of PW21, the detecting officer, to establish its case against the accused. Though PWs.2, 3, 4, 5 and 6 are cited and examined as independent witnesses, they turned hostile towards the prosecution. So the main evidences pressed into service, by the prosecution is that of the evidences of official witnesses namely, PW7, the Sub Inspector of police, PW10 another S.I. of police Crl. APPEAL Nos.894 of 2003 & 935 of 2003 6 and PW21 the Circle Inspector of police, who detected the crime. According to PW21, he received an information regarding the crime and went to the Inspection Bangalow of Thumboormuzhi Dam with the police party. According to PW21, he himself and other party reached the spot at about 6 AM on 25.7.1998 and they saw accused nos.1 to 5 who were tying the rope with the carton boxes in the lorry and on seeing them, except A1 all others escaped from the spot. PW21 prepared Ext.P6 seizure mahazar, by which he had seized 367 boxes each containing 48 bottles and each bottle having the capacity of 180 ml. each containing Indian Made Foreign liquors, in the names mentioned above. These contraband articles will come altogether 3170 ltrs. and 880 ml. During the seizure, three bottles each were taken from the carton, with box numbers 60, 135, 201 and 300 and thereby 12 samples were drawn and collected separately. Thereafter, the vehicles were taken to the Koratty Police Station and the arrested accused and the property also taken to the Vettilappara police station, where Crl. APPEAL Nos.894 of 2003 & 935 of 2003 7 Ext.P6(a) FIR was registered for the said offences. PW21 prepared Ext.P20 property list and produced those items in the committal court, which contained the endorsement of the committal court to the effect that, the same is verified and returned. PW7 is the Police Constable of the Vettilappara police station accompanied PW21 at the time of the alleged seizure. PW8 is the owner of the vehicle bearing Regn.No.KL-7 T 636, PW9 is the previous owner of the Tata sumo vehicle, PW10 is the Sub Inspector of police, Vettilappara police station, who accompanied PW21. PW11 is the Asst. Registering authority, Irinjalakuda, who is examined to prove the registration of the vehicle and issuance of Ext.P7 registration particulars of Maruti Esteem Car bearing Regn.No.KL-8 L 677. PW12 is the Forest Officer, who was in charge of the Forest Check Post at Charpa, cited to prove that the lorry in question passed through such a forests check post. PW13 is the previous owner of the lorry bearing Regn.No.KL-11 B 4068. PW14, is a person residing near to the Inspection Bangalow, cited to prove that he had seen Crl. APPEAL Nos.894 of 2003 & 935 of 2003 8 the escorted vehicle but he was not able to identify any of the accused. PW15 is the Forest Guard who was in charge of the Charpa check post and Ext.P9 is the register kept in that check post, showing the entry of the vehicles passing through that check post and from the register it reveals that KL-B 4068 lorry, passed through the check post during the night from Tamil Nadu on 22.7.1998. Exts.P10 and P11 sketch were proved through PWs.16 and 17 who are the Special Village Officer and Village Assistant respectively. PW18 who turn as hostile to the prosecution, was the attester of Ext.P12 mahazar. Ext.P13 is the R.C.book with respect to the vehicle bearing Regn.No.KL-7 D 630, which was proved through PW19, the Addl. Registration Authority. PW20 is the authorised Check Post Officer, through whom Ext.P14 register was proved. The main evidence that heavily relied on by the prosecution is that of the Detecting Officer namely, PW21, the C.I. of police. It is also relevant to note that, Ext.P18 is the copy of the authorisation in respect of the lorry as per Ext.P18 one Sreedharan is the permit holder of Crl. APPEAL Nos.894 of 2003 & 935 of 2003 9 the said lorry. Exts.P16 and P17 are the bills seized from the lorry along with Exts.P18 and P18(a). As per Ext.P16 the bill issued from Noble Traders, 170 bags of damaged packets, which worth Rs.54,000/-, were purchased in the name of Kannappuram Traders of Perumbavoor on 27.9.1998. Ext.P17 is the letter dated 22.7.1998 from the Noble Traders, to Kannapuram Traders, Perumbavoor. On the basis of the above materials and evidence, the trial court found that there is sufficient evidence to prove the seizure of the lorry, bearing No.KL-11B 4068 with 367 boxes, each box containing 48 bottles and 180 ml. of IMFL from the compound of the Inspection Bangalow of the Thumboormuzhi Dam at 6 AM on 27.9.98. It is on the basis of the above materials the accused were found near the lorry indicated above and the trial court came into the conclusion that the appellants are guilty of the charges levelled against them. 9. Mr.T.G.Rajendran, the learned counsel appearing for the appellants vehemently argued that the prosecution has Crl. APPEAL Nos.894 of 2003 & 935 of 2003 10 miserably failed to establish that the accused nos.1 to 5 where in the possession of the contraband article which was allegedly transported by them. It is also the case of the learned counsel that, during 313 examination of the accused, the accused were not properly questioned, which resulted in high prejudice against the accused and as a result of such a failure, namely, the accused were not made aware as to the actual quantity of the contraband article allegedly possessed by them. It is also the case of the counsel for the appellants that, no attempt was made by the investigating agency to trace out the source from where the alleged contraband article was transported. It is also the case of the learned counsel that, the prosecution has miserably failed to establish that the accused nos.A1 to A5 had transported the contraband article from Karnataka to Kerala through Tamil Nadu, as alleged by the prosecution. The learned counsel strenuously pointed out that, the contraband article which allegedly possessed by the accused were not produced either before the committal court or before the trial court and as Crl. APPEAL Nos.894 of 2003 & 935 of 2003 11 such there is no physical evidence to substantiate the prosecution case alleged against the accused and in support of the above submission, the learned counsel very much relied upon the decisions in Noor Aga Vs.State of Punjab & anr. [JT 2008(7) SC 409]. Thus according to the learned counsel, the prosecution has miserably failed to establish the case against the accused beyond reasonable doubt and therefore the order of conviction and sentence imposed against the appellants as per the impugned judgment is liable to be set aside. 10. On the other hand, the learned Public Prosecutor submitted that, as evidenced by the deposition of PW21, he reached at the place of occurrence in pursuance to the information received by him and on his arrival he had identified accused nos.1 to 5 and also that, PW21 had prior acquaintance with them and the contraband article were seized then and there. It is also the case of the Public Prosecutor that, though the independent witnesses had turned hostile, the evidence of the official witnesses remain intact and there is no inconsistency Crl. APPEAL Nos.894 of 2003 & 935 of 2003 12 or contradiction in their evidence to doubt the veracity of the deposition of those witnesses and therefore the trial court is absolutely correct in its finding of the guilt of the accused. 11. I have carefully considered the arguments advanced by the learned counsel for the appellants as well as the learned Public Prosecutor and also closely perused the evidence and materials on record. It is true that PW21 and party seized the contraband article as mentioned in Ext.P6 seizure mahazar. In this aspect, it is pertinent to note that the specific allegation against the accused is that, they have committed the offences punishable u/s.55(a) and (i) of the Abkari Act. In order to attract the offences u/s.55(a), the prosecution has to prove that the accused had imports, exports, transports, transit or possession of liquor or any intoxicating drug. In order to attract s.55(i), the prosecution has to further prove that the accused had engaged in the sales or stores of liquor or any intoxicating drug. In the present case, as revealed from the judgment and in the prosecution papers, the prosecution has no case as to who Crl. APPEAL Nos.894 of 2003 & 935 of 2003 13 is the owner of the property which allegedly seized from the vehicle. it has to be remembered that, the prosecution has no case that the contraband article allegedly seized from the vehicle, is not meant for sales in the State of Kerala, though it was allegedly manufactured from the State of Karnataka. Suffice to say that the police did not conduct any investigation to find out as to who is the owner or who has the authorship of the contraband article. It is also relevant to note that, even according to the prosecution case and the charge framed by the court below, there is no allegation of any conspiracy but the only offence charged are u/s.55(a) and (i) of Abkari Act r/w. S.34 of IPC. The materials which I indicated earlier shows, certain bills in the name of certain traders but the prosecution has no case that how those trading companies are involved in the dealings. If a correct and proper investigation was conducted, particularly contacting the company from where these contraband articles were purchased or transported, the police would have got some clue as to for whom these articles were brought by transporting Crl. APPEAL Nos.894 of 2003 & 935 of 2003 14 the same from Karnataka to Kerala. In the absence of any specific allegation as to who is the owner of the contraband article and in the absence of any allegation of conspiracy, we have to consider whether the prosecution has succeeded in establishing the alleged possession by the accused with respect to the contraband article. According to PW21, when he reached at the place of occurrence, he had seen A1 to A5. But except A1 all others were escaped from the spot. When PW1 was cross examined he had deposed that, he was not sure the identity of the accused particularly with respect to the name of the father of the accused. There is no satisfactory evidence for arraying the accused nos.2 to 5 in the FIR. In the absence of any evidence as to the allegation of conspiracy hatched by the accused, while they were in possession of the contraband article, it can not be said that the prosecution has succeeded in establishing the possession beyond reasonable doubt. 12. In this respect it is also relevant to note that, the specific allegation of the prosecution against the accused is that Crl. APPEAL Nos.894 of 2003 & 935 of 2003 15 they in furtherance of their common intention, transported contraband article from Bangalore to Kerala through Tamil Nadu. There is no evidence to prove the above fact of transporting the contraband article as alleged by the prosecution. It is true that by examining certain witnesses of the department of forests, who were in charge of Charpa check post and by producing register kept therein to show that the vehicle mentioned, therein passed through such check post. But that does not mean that these article were transported from Karnataka and the same was done by the accused. So the prosecution has miserably failed to prove that the contraband article were in the conscious possession of the accused for the purpose of transporting the same from Karnataka to Kerala. This court in a decision reported in Raman Vs.State of Kerala [2007(4) KLT 223], has held that “unless possession of contraband liquor was incidental or in connection with the export, import, transport or transit of liquor, no offence can be made out u/s.55(a) of Abkari Act”. In the present case, the Crl. APPEAL Nos.894 of 2003 & 935 of 2003 16 prosecution has no case that the contraband article which allegedly recovered is not meant for sales in Kerala, if that be so, on the failure of the prosecution to show that the possession was incidental or in connection with the transport, no offence can be said to have established against the accused by the prosecution. 13. The learned counsel on the strength of the decision of Supreme Court in Noor Aga Vs.State of Punjab & anr. [JT 2008(7) SC 409], submitted that `the non - production of physical evidence is fatal to the prosecution case'. The learned counsel took me through paragraph nos.116, 117, 118, 130, 132, 135, 136 of the above decisions. In the present case, though the prosecution allegation is that PW21 has seized 367 boxes each containing 48 bottles and each bottle has a capacity of 180 ml. and thus altogether consists of 3170 ltr. and 880 ml. of Indian Made Foreign liquor, what was produced before the court is only M.O.(1) series. M.O.(1) series is one carton containing 48 bottles having the capacity of 180 ml. each. The Crl. APPEAL Nos.894 of 2003 & 935 of 2003 17 so called remaining contraband article has never produced or reported either before the committal court or before the trial court. It is also relevant to note that, as evidenced by Ext.P21 chemical analysts report, after the chemical analysis, the remnants were also sent back but that was also not produced before the court. Though in Ext.P6 seizure mahazar the details are given, those articles are not produced before the court. In paragraph no.136 of the decision of the apex court referred above, it was held that “physical evidence of a cases of this nature being the property of the court should have been treated to be sacrosanct. Non-production thereof would warrant drawing of a negative inference within the meaning of S.114(g) of the Evidence Act. While there are such a large number of discrepancies, if a cumulative effect thereto whereof the permissive inference would be that serious doubts are created with respect of the prosecution's endeavour to prove the fact of possession of contraband from the appellant”. In the present case, from the discussion it is clear that the prosecution has Crl. APPEAL Nos.894 of 2003 & 935 of 2003 18 miserably failed to prove the possession of the contraband article possessed by the accused, in terms of the allegation raised by the prosecution against the accused. The above facts itself is sufficient to held that the prosecution has miserably failed to establish the allegation of possession beyond reasonable doubt. The non-production of the physical evidence intensified, the doubt and the veracity of the prosecution case and certainly the benefit will go in favour of the accused. 14. In S.53(a) of the Abkari Act, it is specifically enumerated the procedure to be followed regarding the disposal of the seized contraband article. None of the procedure contemplated by S.53(a) adopted in the present case and no permission was sought from the court for the disposal of the same in terms of S.53(a) of the Abkari Act. During the cross examination of PW21, the answers given by him is not sufficient to inspire the confidence of the court and as such there is no specific and convincing explanation from the side of the prosecution as to what happened to the contraband article Crl. APPEAL Nos.894 of 2003 & 935 of 2003 19 allegedly seized. As I indicated earlier, the prosecution did not take any effort to trace out the actual offenders and the owners of the contraband article and also failed to find out whether there is any element of conspiracy for transporting such a large quantity of IMFL from another state to the state of Kerala. The provisions of Abkari Act contemplates stringent punishment for contravention of the provisions of the act and therefore it was incumbent upon the prosecution agency to collect the best and convincing evidence and materials to connect the accused with the alleged offence without any loop holes for the escape of the actual culprits. Therefore, I have no hesitation to hold that, the investigation was conducted in a shabby and irresponsible way, which resulted in utter failure in establishing the case against the accused beyond reasonable doubt and therefore the accused is entitled to get the benefit of doubt. Consequently, I am unable to approve the finding of the court below regarding the guilt of the accused and accordingly the order of the conviction recorded against the accused is set aside. Crl. APPEAL Nos.894 of 2003 & 935 of 2003 20 In the result, these appeals are allowed setting aside the judgment dated 17.5.2003 of the Court of IIIrd Addl. Sessions Judge (Fast Track Court-I), Thrissur, in S.C.No.211/00 and the conviction and sentence imposed against the appellants as per the above judgment are set aside. The bail Bond if any executed by the appellants, shall stand cancelled and they are set at liberty. The above criminal appeals are allowed accordingly. V.K.MOHANAN, Judge. ami/