IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 20TH SEPTEMBER 2011 / 29TH BHADRA 1933 CRL.A.No. 997 of 2003() -------------------------------- SC.318/2000 of ADDITIONAL SESSIONS JUDGE (ADHOC)II, KASARAGOD .................... APPELLANT/1ST ACCUSED: ---------------------------------------- PODI @ YOGIDASAN, 40/98, S/O.RAGHAVAN, PARAYAKKAVIL VEEDU, KAMBALLOOR, CHITTARIKKAL VILLAGE. BY ADV. SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE SRI.BINDU SREEKUMAR RESPONDENT/COMPLAINANT: ------------------------------------------------ STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20 / 09 / 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN,J ------------------------------ Crl. A.NO.997 of 2003 -------------------------------------------- Dated this the 20th day of September, 2011 JUDGMENT The appellant is the accused in Sessions Case No.318 of 2000 in the file of the Addl. Sessions Judge (Adhoc-II), Kasargod and he challenge his conviction and sentence of the offence u/s.55(g) of the Abkari Act. 2. The prosecution case is that at about 3.10 p.m on 9.9.1998, the accused was found in possession of wash and arrack and found engaged in the manufacturing of illicit arrack at Beenanadi Village and thereby the accused has committed the offence punishable u/s.55(a)(b) and (g) of the Abkari Act. With the above allegation, Crime No.159/1998 was registered in the Chittarikkal Police Station and on completing the investigation, report was filed before the Judicial First Class Magistrate Court- III, Hosdurg, whereupon cognizance was taken for the above offence and instituted C.P.No.50/99, learned Magistrate committed the case to the Sessions Court, wherein the case is received as SC No.318/2000 and subsequently made over the case to the court of Asst. Sessions Court, Hosdurg, but the same was withdrawn from there and transmitted to the trial court for Crl. A.NO.997 of 2003 2 disposal. Thus, on appearance of the accused, the hearing of the prosecution of the defence a formal charge was framed against the accused for the offences punishable u/s.55(a)(g) of the Abkari Act and when the charge read over and explained to the accused, they denied the same and they pleaded not guilty, which resulted in the further trial of the case during which the prosecution adduced its evidence consists of the oral testimony of Pws.1 to 7 and documentary evidence in Exts.P1 to P8. Beside the above, Mos.1 to 8 were identified and marked as material objects. No evidence is adduced either oral or documentary from the side of the defence. On questioning the accused u/s.313, they denied the incriminating circumstances and evidence brought on the evidence of prosecution and denied the prosecution allegation. The trial court after considering the entire evidence and materials found that the prosecution has miserably failed to prove the charge against the 2nd accused and also found that the prosecution has succeeded only in establishing the offence u/s.55 (g) of the Abkari Act against the appellant, who is the 1st accused and thus by the impugned judgment, the appellant/1st accused is convicted for the offence u/s.55(g) of the Abkari Act, whereas the 2nd accused is acquitted on such conviction against the appellant Crl. A.NO.997 of 2003 3 herein, he is sentenced to undergo rigorous imprisonment for one year with a fine of Rs.1,00,000/- in default, he is directed to undergo rigorous imprisonment for a further period of 3 months. It is the above conviction and sentence imposed against the 1st accused challenged in this appeal. 3. I have heard Sri. Swathikumar, learned counsel appearing for the appellant and Sri. Sivakumar, learned Public Prosecutor. 4. The specific case of the prosecution is that the accused was found engaged in manufacturing of illicit arrack and thereby committed the offence punishable u/s.55(g) of the Abkari Act did not prove the above case, the prosecution mainly depends upon the evidence of PW1, the officer, who detected the crime and PW6, who conducted the investigation and PW7, who laid the charge. Though, the prosecution has cited PWs.2 and 3 as independent witnesses to prove the seizure as well as the occurrence they turned hostile to the prosecution. The learned Sessions Judge in his judgment as elaborately considered the available prosecution evidence and materials. As I indicated earlier, in order to prove the prosecution allegation, the prosecution mainly depends upon the evidence of PW1, who Crl. A.NO.997 of 2003 4 detected the crime. When PW1, was examined he had deposed that in pursuance of the telephonic message received by him, himself and party proceeded to the place of occurrence and they reached at Kariyankode River Bank, they saw two persons engaged in the manufacture of country arrack seeing them they jumped into the river and escaped through the other side of the river. According to PW1, though Police Constables tried to took the accused they failed in their attempt, so they returned back. When, PW1 examined, Ext.P1 seizure mahazar and Ext.P2 FIR were marked through him. Beside the above documents, several material objects were also identified and marked through PW1. During his examination, he had deposed the steps adopted by him towards the seizure of the contraband article and the preparation of Ext.P1 seizure mahazar. He had also deposed that after the seizure, he himself and party reached in the Police Station and recorded Ext.P2 FIR and thereafter, the contraband article and the documents were kept in the Police Station. According to him, he registered Ext.P2 FIR. As I stated earlier PWs.2 and 3 turned hostile towards the prosecution. Though, they have admitted in the signature in the scene mahazar as well as the seizure mahazar. It is relevant to note that both PWs.2 Crl. A.NO.997 of 2003 5 and 3 has categorically stated that, they did not know the accused. PW6 is the Sub Inspector of Police, who subsequently, undertook the investigation. According to him, PW6 that the 2nd accused was included in the FIR and the father of the 1st accused it is not correct and therefore, he filed a report that is Ext.P5 to alter the name of the 2nd accused, whose actual name is Karuvacheri Raghavan, S/o.Kunjappan Nair. PW6 stated that the list of property produced before the court. P7 is the forwarding note prepared by PW6 and sending the sample for chemical analysis. Ext.P8 chemical analysis report marked through PW6. PW7 is the successor to PW6, who laid the charge against the accused. It is the above materials and evidence relied on by the learned judge of the trial court to convict the accused u/s.55(g) of the Abkari Act, which is under challenge in this appeal. 5. Sri.Swathikumar, learned counsel for the appellant vehemently submitted that the prosecution has miserably failed to establish the allegation against the accused beyond reasonable doubt and the learned Sessions Judge failed to appreciate the defence contention and failed to understand the infirmities and inherent incurable defect of the prosecution particularly in established the identity of the appellant/accused. Crl. A.NO.997 of 2003 6 The learned counsel for the appellant submitted that the contraband article was not produced before the court. Thus, according to the learned counsel there is no physical evidence with respect to the prosecution allegation. It is also the submission of the learned counsel that though the alleged seizure was on 9.9.1998 the properties were produced before the court only on 18.9.1998 and the FIR reached in the court only on 11.9.1998 as observed by the learned Sessions Judge and there is delay in reaching the FIR in court in time which create doubt regarding the veracity of the prosecution allegation. The learned counsel also invite my attention to the deposition of PW1 and 6 with respect to the actual place of occurrence. It is pointed out that when PW1 says that the place of occurrence on the south side of the river, PW6 says that it is on the northern side and absolutely there is no mention regarding the direction of the river in Ext.P1 seizure mahazar. Thus, according to the learned counsel the prosecution evidence is shabby in nature and the circumstances and the infirmities pointed out by the learned counsel, so that the prosecution has miserably failed to establish the case beyond reasonable doubt and therefore, the finding of the court below and the conviction and sentence imposed against Crl. A.NO.997 of 2003 7 the appellant are liable to be set aside. 6. On the other hand, Sri.Sivakumar, learned Public Prosecutor vehemently submitted that the evidence of PW1 intact which positively proved the prosecution allegation against the accused and the contemporary documents produced by the prosecution when the assurance of the correctness and the acceptability of the deposition of PW1. The learned Public Prosecutor has pointed out that in Ext.P1 seizure mahazar itself the name of the appellant/accused is mentioned and when PW1 was examined, he had deposed that at the time of the seizure itself, PW1 had identified the accused, which is further confirmed during the trial of the case. So there is no discrepancies or depth evidence regarding the identity of the accused. It is the further submission of the learned Public Prosecutor that PW1 has taken sample as per Ext.P1 seizure mahazar which reached in the court without any room for tampering the same and as per the forwarding note, the samples were send to the chemical Analyst and Ext.P8 chemical analysis report would show that samples were intact and therefore, even if the delay in reaching the material objects in the court, the same will not against the prosecution. Thus, according to the Crl. A.NO.997 of 2003 8 learned Public Prosecutor no interference is warranted. 7. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the learned Public Prosecutor. I have carefully gone through the judgment of the trial court as well as the deposition of the prosecution witness and the other materials on record. In the light of the evidence and materials available on record and in the light of the rival pleadings advanced by the counsel for the appellant as well as the learned Public Prosecutor, the question to be considered is whether the trial court is justified in its finding that the appellant is committed the offence punishable u/s.55(g) of the Abkari Act. As I indicated earlier, the prosecution mainly depends upon PW1, who substantiate its allegation against the accused/appellant herein. On a scanning of the oral testimony of PW1, it can be seen that according to PW1, himself and party proceeded to the place of occurrence on the basis of the departmental information received by him and when himself and party reached at the spot, the persons those who are engaged in the preparation of illicit arrack, jumped into the river and escaped through other bank of the river and the attempt on the part of the Police Constables, who accompanied, PW1 resulted in Crl. A.NO.997 of 2003 9 vein. It is true, as observed by the learned Sessions Judge in Ext.P1 seizure mahazar as well as in Ext.P2 FIR, PW1 has stated that he has got prior acquaintance with the appellant-A1. In this juncture, it is pertinent to note that, though the alleged seizure was on 9.9.1998 at 3.10 p.m, the FIR reached in the court only on 11.9.1998 and there is no positive evidence as to on which date Ext.P1 seizure mahazar reached in the court. If that be so, a bear statement either in Ext.P1 seizure mahazar or in Ext.P2 FIR that PW1 has got prior acquaintance with A1 is not sufficient to prove that the prosecution has succeeded in establishing the identity of A1. According to me, on examination of the deposition of PW1 in this contest, it can be seen that no where in the deposition of PW1, he had stated that he got prior acquaintance with A1. In the absence of any such positive evidence, the mere mentioning of the above fact in a belated FIR is not sufficient to satisfy that the prosecution has succeeded in establishing the identity of the accused. It is also relevant to note that the address of A1 is not given either in Ext.P1 or in Ext.P2. It is relevant to note that A1 was arrested from the spot. It is further relevant to note that there is no arrest memo prepared by PW6, with respect to the arrest of A1. After the Crl. A.NO.997 of 2003 10 arrest of A1, prosecution has no claim that he was the accused got identified by PW1. No evidence is forthcoming from the part of prosecution as to how, PW6 identified the appellant as the person, who engaged in the illicit distillation of arrack. Non mentioning of the address of A1 in Ext.P1 seizure mahazar and mentioning of the address of A1 in the belated FIR will go against the prosecution. 8. It is also relevant to note that though the prosecution has got a claim that the contraband articles and the material objects were seized on 9.9.1998, MOs.1 to 7 were produced before the court only on 18.9.1998. The forwarding note has also produced before the court belatedly that on 26.9.1998. PW1, the detecting officer has stated that he kept the material objects and the contraband article in the Police Station. But these material objects were produced before the court on 18.9.1998, there is no explanation and evidence from the part of the prosecution as to who was the custodian of the contraband article and the material objects till the same were produced before the court. In the absence of the evidence with respect to the proper custody of the contraband article as well as the material objects and the custodian of the same. According to Crl. A.NO.997 of 2003 11 me, the observation made by the learned Judge of the trial court to accept the prosecution case against the accused is not proper and I cannot approve the same. In paragraph 10 of the judgment of the trial court, the learned judge has after an elaborate consideration has found that the prosecution has failed to prove the identity of A2. The learned judge has found that prosecution witnesses identified for the first time, while the accused in the box before the court. According to me, the above observation is applicable with respect to the appellant herein because when PW1 was examined he never deposed before the court he had prior acquaintance with the accused/ appellant herein, especially when prosecution has no claim that the identity of A1, appellant confirmed after his arrest and during the course of investigation. Therefore, the mere mentioning of name of A1 in Ext.P1 seizure mahazar or Ext.P2 FIR is not sufficient to hold that the prosecution has established the identity of the appellant/ accused. 9. In the light of the above discussion and the materials referred above, I am of the view that the prosecution has miserably failed to establish the identity of the appellant/accused as the person, who engaged in the alleged distillation of country Crl. A.NO.997 of 2003 12 arrack and further the prosecution has failed to establish the case against the accused/appellant beyond reasonable doubt because of the non-explanation for the delay in reaching the FIR in the court as well as the delay that occurred in produced the material objects and the contraband article before the court below. Therefore, according to me, the appellant/accused is entitled to get the benefit of doubt and consequently, the conviction recorded by the trial court against the appellant is set aside. In the result, this appeal is allowed, setting aside the judgment dated 6.6.2003 in SC No.318/2000 of the court of Addl. Sessions Judge (Adhoc-II), Kasargod and the accused/appellant is acquitted of all the charges levelled against him and his bail bond if any, executed by him is stand cancelled and he is set at liberty. V.K.MOHANAN, JUDGE. pm/