IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 15TH JANUARY 2008 / 25TH POUSHA 1929 CRL.A.No.552 of 2002 (B) ------------------------------ SC.111/2000 of ADDL.SESSIONS COURT - FAST TRACK COURT (ADHOC-II), KOTTAYAM .................... APPELLANT/ACCUSED NO.3: --------------------------------- JAYAN S/O. THANKAPPAN, KOCHUKOTTARAMPARAMBIL VEEDU, PUZHAVATHU KARA, CHANGANACHERRY. BY ADV. SRI.R.SANTHOSH BABU RESPONDENT: COMPLAINANT ----------------------------------- STATE OF KERALA (CRIME NO.283/98 OF CHANGANACHERRY POLICE STATION) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/01/2008 ALONG WITH Crl. Appeal Nos.576 & 611 of 2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal Nos.552, 576 & 611 of 2002 ------------------------------------------------ Dated this the 15th day of January, 2008 JUDGMENT These three appeals arise out of S.C.111/2000 on the file of the Additional Sessions Court, Fast Track Court (Adhoc)-II, Kottayam. A1 is the appellant in Crl. Appeal No.611/02, A3 is the appellant in Crl. Appeal No.552/02 and A4 and A5 are the appellants in Crl. Appeal No.576/02. They have preferred these appeals challenging the conviction entered into against them by the Sessions Judge for offence under Section 55(a) of the Abkari Act and the sentence passed against them thereunder to undergo rigorous impri- sonment for a term of three years each and to pay a fine of Rs.1 lakh each and in default to undergo simple imprisonment for sixty days each. Crl. Appeal Nos.552 & con. cases -2- 2. The prosecution case is that the appellants along with A2 who is now no more had in contravention of the provisions of the Abkari Act were found to possess ten litres of spirit in the tank specially made in the Tata Estate Car with Registration No.TN-07-J/1719 in the possession of the first accused and the said car with spirit was found on the MC road in front of the N.S.S College at Perunna in Kizhakku Kara in Changanacherry village at about 1.30 p.m. on 29/05/98. It was also further alleged that plastic covers containing arrack kept in the house of the second accused bearing door No.XVII/269 of Changanacherry municipality were burned at the southern courtyard of the said house and thereby the accused caused evidence of commission of offence to disappear and the said offence was detected by PW6/the Sub Inspector of Police, Changanacherry and party and thereby the Crl. Appeal Nos.552 & con. cases -3- appellants and the late second accused committed offence punishable also under Section 201 of the IPC over and above the offence punishable under Section 55(a) and (i) of the Abkari Act. 3. On appearance of the appellants in the court below the Sessions Judge heard submissions of the appellants and the prosecution; framed charge against them for offence under Section 55(a) of the Abkari Act and under Section 201 of the IPC; read over the charge and explained it to the appellants and questioned them. Thereupon, the appellants pleaded not guilty and consequently, a trial of the case was conducted by the court below. 4. Prosecution examined PWs.1 and 6 and got marked Exts.P1 to P6 and got identified MOs.1 to 7. On the prosecution closing their evidence, the appellants were questioned by the court below. Thereupon, all accused Crl. Appeal Nos.552 & con. cases -4- generally denied all circumstances appearing in evidence against them and maintained that they are innocent. According to them, the case is one falsely foisted against them. However, no evidence was adduced in defence. 5. The court below considered the case in the light of the evidence adduced as aforesaid; found the appellants guilty of the offence punishable under Section 55(a) of the Abkari Act and convicted them thereunder but found them not guilty of the offence under Section 201 of the IPC and consequently, acquitted them of the offence under Section 201 IPC. Thereafter the appellants were heard on the question of sentence and were sentenced as already stated. Hence, these appeals by the aggrieved accused A1 and A3 to A5. 6. Arguments in these appeals were heard together and these appeals are being disposed of together being appeals from a common Crl. Appeal Nos.552 & con. cases -5- judgment. 7. It is vehemently contended before me by the learned counsel appearing for the appellants that there is no iota of evidence in the case to show that spirit was transported in a Tata Estate Car as alleged and that in any event the appellants are not shown to have any knowledge as to any alteration effected in the vehicle or that the vehicle contained certain quantity of spirit in the tank specially made for the purpose as alleged by the prosecution; that however, there is no independent evidence to establish the guilt in the appellants; that the detecting officer himself has performed the investigation in the case which is deprecated by the Apex Court and thereby prejudice has been caused to the appellants and that further, the court below has not pointed out any incriminating circumstance as against the Crl. Appeal Nos.552 & con. cases -6- appellants while questioning them under Section 313 Cr.P.C and therefore, the appellants had no idea as to whether they were to adduce any evidence in defence and that without putting any incriminating circumstance if any available in the prosecution evidence in the case, the appellants should not have been convicted and sentenced as has been done in the instant case and that for all the above reasons the appeals deserve to be allowed and the appellants acquitted. 8. On the other hand, it is vehemently contended by the Public Prosecutor for the respondent/State that the very fact that the appellants in Crl. Appeal No.611/02 took to heels when the vehicle was intercepted by PW6 and the appellants in the other two appeals also attempted to take to heels, show their involvement in the commission of the offence; that they would not have attempted to take to Crl. Appeal Nos.552 & con. cases -7- heels unless they were having a guilty mind that however, unless the accused wanted to have spirit transported in large quantity they would not have modified the Tata Estate Car wherein they were travelling in such a fashion forming separate tanks therein for carrying spirit and that therefore, the evidence of PW6 corroborated by the testimony of PW5 was sufficient to enter into a conviction of the appellants especially when PWs.1 and 2 who are the mahazar witnesses though they turned hostile has proved the preparation of the mahazar and admitted the fact of their having attested the said mahazar and PW3 having attested in Ext.P4 search list. 9. Ext.P1 is the mahazar under which the Tata Estate Car wherein spirit is alleged to have been transported was taken into custody. PWs.1 and 2 are the attestors to the said mahazar. They have turned hostile to the Crl. Appeal Nos.552 & con. cases -8- prosecution and they did not support the seizure of the car or the spirit from the car and they have denied of their having given statements to the police respectively vide Exts.P2 and P3. Though they admit their signatures in Ext.P1 mahazar they do not support the preparation of Ext.P1 mahazar in their presence. According to both those witnesses, they were signing in Ext.P1 at the police station and not at the scene of occurrence. PW3 who is attestor to Ext.P4 search list swears that he does not know any of the accused and that he was signing in Ext.P4 on the road. PW4 is the Circle Inspector of Police who has verified the investigation in the case while he was Circle Inspector of Police, Changanacherry for the period from 22/08/95 to 09/06/2000. However, he does not speak anything about the merits of the case. Crl. Appeal Nos.552 & con. cases -9- 10. PW6 is the detecting and investigating officer in the case. At the time of occurrence, he was the Sub Inspector of Changanacherry Police Station. According to him, he got information at about 1.15 p.m. on 29/05/98 that a Tata Estate Car bearing registration No.TN-07-J/1719 is transporting arrack from Thiruvalla to Kottayam along the MC road and accordingly, himself and party proceeded in jeep and waited in front of the NSS College at Perunna on the MC road side and then they saw vehicle bearing registration No.TN-07-J/1719 coming from South to North and they intercepted the vehicle and thereupon out of five passengers in the vehicle two persons alighted and moved towards the South and the other three persons who attempted to take to heels were intercepted by himself and party and they have conducted search in the vehicle and detected that a special tank is formed Crl. Appeal Nos.552 & con. cases -10- within the dicky of the car and on the platform with its mouth beneath the head rest for pouring liquid into the tank and on inspection it was found that the tanks contained spirit. According to him, on further inspection it was also found that there were two valves beneath the car enabling draining of contents from out of the tank and on examination it was found that on opening the valve spirit is coming out from the tank and they collected samples in three bottles containing 500 ml. each marking it as S1, S2 and S3 and sealed it affixing labels signed by himself and witnesses. He further, deposed that the three accused (accused Nos.3 to 5) were arrested from the scene of occurrence at 2.00 p.m. According to him, the first accused is one among the two persons who had taken to heels and could not be apprehended then. He has also spoken to the registration of the Crl. Appeal Nos.552 & con. cases -11- crime drawing up Ext.P5 FIR and of search having been conducted in the house of the now deceased A2 and of preparation of Ext.P4 search list whereunder six number plates were recovered from the said house - a pair each of the number plates bearing respectively numbers KL-7-G/0536 (Mos.1 and 2); KL-7-E/3333 (MOs.3 and 4) and TN-2-B/964 (Mos.5 and 6). According to PW6, the capacity of the tanks found in the car specially made for the purpose of carrying spirit is 650 litres. He produced the accused before court on the very next day. He has also proved Ext.P6 Chemical Analysis Report. According to him, the second accused appeared before the station and was enlarged on bail consequent on direction of court and he effected arrest of A1 at Perunna on 06/07/98 and that he got identified A1 through the witnesses and thereafter, produced A1 before court on 07/07/98 and he transferred the car Crl. Appeal Nos.552 & con. cases -12- to the Assistant Commissioner of Excise and he prepared the charge against the accused. 11. In cross examination he states that M.V.I had inspected the car and that the engine number and chassis number of the car had been tampered with and that the registration number of the car was fake and in view of the alteration in the engine and chassis number the original registration number of the car could not be traced. The report of the M.V.I is not proved in the instant case. There is no report furnished to show that the engine number and chassis number of the vehicle had been tampered with. No witness had been questioned to come to the conclusion that the engine and chassis number were tampered with or that in view of such tampering the original registration cannot be traced. In cross examination, he admits that the first accused was being got identified Crl. Appeal Nos.552 & con. cases -13- through the police party accompanying him at the time of occurrence and that however, he has not got identified A1 through PW5. The only member of the police party who was examined as the person who had accompanied PW6 is PW5. Though he has stated that the car was being driven by A4 that does not find a place in Ext.P1 mahazar. He also admits that he has not seen any record to show the ownership of the car and that he was not able to locate the owner of the car. According to him, at the scene of occurrence, there were no shops which were kept opened. He has also stated that the vehicle was later confiscated to the state. It is not known as to how the vehicle was confiscated to the state when the engine number and chassis number had been tampered with; its original registration could not be traced and even the registered owner of the car could not be traced for that reason. The Crl. Appeal Nos.552 & con. cases -14- vehicle had not been produced before court which if produced would have evidenced that modifications were effected in the car by modifying and forming tank for carrying spirit or arrack as alleged. 12. PW5 the police constable who was accompanying PW6 in the detection and seizure has also spoken to the interception of a Tata Estate Car and of two persons therein having taken to heels and three other persons having been intercepted and arrested. He also has corroborated the testimony of PW6 as regards the alterations effected in the car. He has further sworn that it was accused NOs.3, 4 and 5 who were arrested at site and A1 was one of the two persons who had taken to heels. He has stated in cross examination that he has got prior acquaintance with A1 though by sight only. Crl. Appeal Nos.552 & con. cases -15- 13. In cross examination PW5 has admitted that his knowledge that A4 was driving the car was on hearsay only. Thus, on the whole, apart from the mahazar and the evidence of PWs.5 and 6 there is absolutely no evidence that any car was intercepted or seized and later, it was handed over to the Assistant Commissioner of Excise and was finally confiscated to Government. 14. As regards the complicity of the appellants in the commission of the crime apart from the interested testimony of PW6 corroborated by the evidence of PW5 who was accompanying PW6 at the time of occurrence, there is absolutely no evidence. The evidence of PWs.5 and 6 cannot be accepted to hold accused guilty as it is not established on evidence that with the guilty mind of transporting spirit in the car they were travelling in the car. As to who is the owner Crl. Appeal Nos.552 & con. cases -16- of the vehicle, there is no evidence; as to the person who was driving the car also apart from the testimony of PW6 in court, there is no other evidence. Apart from all these, as rightly contended by the counsel for the appellants, not even a single circumstance which is incriminating against the accused had been put to the accused for them to explain while they were questioned under Section 313 Cr.P.C. The only incriminating circumstance that is put is in relation to A1 is that he was one among the two persons who took to heels and that he was got identified through the witnesses. No witness supports the case of PW6 that A1 was got identified by him through the witnesses. PW5 has categorically stated that A1 has not been got identified through him and that is admitted also by PW6. In the circumstances, by no stretch of imagination can the court come to the conclusion on the Crl. Appeal Nos.552 & con. cases -17- evidence in the case that the accused were found transporting spirit in a Tata Estate Car modified for the purpose as alleged by the prosecution. The conviction of the appellants for offence under Section 55(a) of the Abkari Act in the circumstances is unsustainable and deserves to be reversed. 15. In the result, allowing these appeals I set aside the conviction entered into by the court below and the sentence passed against the appellants (A1 and A3 to A5) and acquit them of the offence under Section 55(a) of the Abkari Act. Their bail bonds are cancelled. K.P.BALACHANDRAN, JUDGE kns/-