IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 24TH OCTOBER 2008 / 2ND KARTHIKA 1930 CRL.A.No. 1588 of 2003(C) --------------------------------- SC.489/2001 of ADDL. SESSIONS COURT (ADHOC-II), THODUPUZHA CP.42/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT, ADIMALI .................... APPELLANT/ACCUSED : ---------------------------- SAJI, S/O. KRISHNANKUTTY, KUNNEL VEEDU, AMPAZHACHAL KARA, KUNCHITHANNI VILLAGE, DEVIKULAM TALUK. BY ADV. SRI.ELVIN PETER P.J. RESPONDENT/COMPLAINANT : ------------------------------------- STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.K.L.LAKSHMI RANI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------ Crl.A. No.1588 OF 2003 ------------------------------ Dated this the 24th day of October, 2008 JUDGMENT Aggrieved by the order of conviction and sentence passed against the accused by the court of Additional Sessions Judge (Adhoc-II), Thodupuzha in S.C.No.489/01, the accused approached this court by filing the above appeal. 2. The prosecution case is that the accused was found in possession of 8 bottles of illicit liquor labelled as “Doctor's Brandi” each of 375 ml. capacity, kept by him in his tea shop conducted in building bearing No.IV/257 of Vellathooval Panchayat, Ambazhachal kara. On the basis of the said allegation crime No.1/99 was registered in Excise Range, Adimaly as accused for the offence under Section 55(a) of Abkari Act. After completing the investigation, the final report was filed in the court of Judicial First Class Magistrate, Adimaly, where cognizance was taken and C.P.No.42/00 was instituted and by order dated 10.10.2001, learned Magistrate committed the case to the Sessions court from where the same made over Crl.A.1588 of 2003 2 to the Asst. Sessions court, Thodupuzha and again the case was transferred from that court to the trial court for disposal. While the case was pending before the Asst. Sessions court, a charge was framed against the accused under section 55(a) of Abkari Act to which he pleaded not guilty when the same explained and read over to him. PWs 1 to 5 were examined from the side of the prosecution and marked Exhibits P1 to P10 as documentary evidence and also identified M.O.1 series as material objects. The accused took a stand of total denial. From the appendix of the judgment it appears that though no documentary evidence adduced from the side of the defence, oral evidence adduced through DW1 and DW2. But in the judgment, it is stated by the trial court that accused did not adduce any defence evidence. However on the basis of the contentions advanced in the case, three issues were framed for consideration by the trial court. 3. The prosecution allegation is that PW1 got prior information that the accused engaged in sale of contraband illicit liquor in his tea shop and accordingly PW1 and PW2 reached at the spot on 30.01.1999 at about 3.40 p.m. Crl.A.1588 of 2003 3 According to the prosecution, the tea shop, conducted by the accused, situating at Iruttukanam, Amabalachal junction. On inspection of the building, where tea shop run by the accused, according to PW1, a kit was detected in the kitchen of the said tea shop and on further examination of the same he had seen 8 bottles, each having capacity of 375 ml. and all the bottles contained a liquid and when one of the bottles was opened and on taste and smell, he identified the same was illicit liquor. Each of the bottle contained a sticker wherein it is printed as “Vorion Doctor's Brandi”. Thus according to PW1, bottles were seized as per Exhibit P1 mahazar to which PW3 and PW4 made as attesting witnesses and obtained the signature of the accused. Thereafter the party returned to the Range Office where crime No.1/99 was registered for the offence under Section 55(a) of the Abkari Act. Further investigation was conducted by PW5, who finally laid the charge. Exhibit P1 mahazar, P2 search memo, P3 search list, P4 arrest memo, P5 crime and occurrence report, P6 remand application and P7 property list are proved through PW1. Exhibit P8 is the statement of CW3 given before Crl.A.1588 of 2003 4 PW5. The said statement of CW3 proved through PW3. Exhibit P9 is the photostat copy of the rent agreement entered into between the owner of building in question and the accused and it is proved through PW5. Exhibit P10 is the chemical analysis report. When PWs1, 2 and 5 examined, they deposed in terms of the prosecution case. 4. The case set up by the defence is to the effect that he has no connection with the running of the tea hotel or tea shop and he is only an employee of the shop. It is also his case that there were several workers in the shop and customers were also having easy access to the shop and it is also the case of the defence that no contraband article seized from his physical possession. In order to substantiate the above case, he had examined 2 witnesses as DW1 and DW2, who are merchants conducting business in the nearby shops in the same locality. So according to the defence, the case was foisted against him by the excise authorities because he had questioned when the excise party threatened certain customers, who were taking meals from the shop. So according to the accused, it was a false Crl.A.1588 of 2003 5 case. 5. But the court below based upon the evidence adduced by the prosecution it is found that the accused is guilty of the charge leveled against him and accordingly he is sentenced to undergo rigorous imprisonment for a period of four years and a fine of Rs.1 Lakh and in default to undergo imprisonment for a period of two months under Section 55(a) of Abkari Act. It is the above conviction and sentence challenged in this appeal. 6. I have heard learned counsel for the appellant and also learned Public Prosecutor. Learned counsel for the appellant submitted that there is no legal evidence to show that the contraband was recovered from the possession of the accused and absolutely there is no evidence to show that he was the person conducting the tea shop at the relevant time. In support of the above contention the learned counsel pointed out that DW1 and DW2 have stated that the accused at the relevant time was an employee of the tea shop from where the contraband article alleged to have recovered. It is also the case of the counsel for the appellant that there is no independent evidence Crl.A.1588 of 2003 6 to corroborate the version of PW1, PW2 and PW5. In fact PW3 and PW4 cited as witnesses to prove the seizure but turned hostile to the prosecution. The counsel pointed out that PW3 and PW4 are not from the locality and they were brought by the prosecution from another place only to make as witnesses for the alleged seizure. Learned counsel vehemently argued that there is no evidence to show that what alleged to have recovered from the possession of the accused is illicit liquor. In support of the above contention, learned counsel pointed out that no sample was taken at the time of the alleged seizure and the prosecution has further failed to prove that the alleged liquid is illicit liquor. Learned counsel as an alternative point argued that even if the entire seizure is admitted as true no offence will lie against the accused since the alleged contraband article is only an Indian Made Foreign Liquor namely Vorion Doctors Brandi and the total quantity alleged is only 3 litres. On the basis of the evidence on record, the learned counsel pointed out that the bottles were intact and the same contained stickers showing the name of the Indian Made Foreign Liquor and also it Crl.A.1588 of 2003 7 is further proved that the bottles were properly sealed and covered and it contains factory seal also. Therefore according to the counsel, even if the same is admitted as true, not conceded, no offence will disclosed against the accused, since the quantity of Indian Made Foreign Liquor which alleged to have recovered from the possession of the accused will come only a small quantity and such quantity of Indian Made Foreign Liquor is permitted to possess on today. 7. Learned Public Prosecutor submitted that the detection and the seizure was effected on the basis of the prior information received by PW1 and though PW3 and PW4 turned hostile, the evidences of PW1 and PW2 prove the seizure of the contraband article from the possession of the accused and therefore learned Public Prosecutor supporting the judgment of the trial court submitted that no interference is called for. 8. I have carefully considered the rival contentions advanced by the learned counsel for the appellant as well as the Public Prosecutor. The crux of the prosecution case is that the accused was conducting a tea shop and on the basis of the prior Crl.A.1588 of 2003 8 information received by PW1, they went to the tea shop and on inspection, detected 8 bottles which contains liquid and on opening the bottle and on taste and smell, realized that it was illicit liquor and accordingly the bottles were seized as per Exhibit P1 mahazar. Subsequently from the court the seized contraband sent for chemical analysis, and accordingly Exhibit P10 report was obtained, and the chemical analysis report confirmed that the contraband is illicit liquor. Going by the prosecution case, it can be seen that the specific case of prosecution is that the alleged contraband article was kept in the kitchen of the tea shop run by the accused and accordingly same was seized from there. There is no allegation that contraband was seized from the possession of the accused. Even if it is admitted for the sake of argument that the tea shop in question was run by the accused, it is to be noted that there were other workers in the tea shop and the tea shop itself is opened to general public as customers. Though PW1 has stated that he went to the shop in pursuance of the prior information, there is nothing on record to show that he had received prior Crl.A.1588 of 2003 9 information. No details such as the time, date, source of information etc. not given. There is no contemporaneous document to ensure the interest of such information. When PW5 was examined and an answer to question whether he had verified whether PW1 got a prior information, he did not verify the same and as such there is no material to show that PW1 has got the prior information to proceed to the above shop. As the contraband article was not recovered from the person of the accused, and when the kitchen of the tea shop is not in the exclusive possession or control of the accused, the prosecution has to establish that the alleged contraband was kept and stored by the accused intentionally for the alleged sale and he was in exclusive possession of the same. During the cross examination of DW1, it is brought out in evidence that the building owner is residing within 15 meters adjacent to the tea shop and there is a bypass line adjacent to the tea shop which leads to his house. When the general public has got access to the tea shop as customers and there are other persons as employees in the shop besides the accused, I am of the view Crl.A.1588 of 2003 10 that the prosecution has to prove that the accused was in exclusive possession of the contraband. 9. It is also relevant to note that the defence has adduced evidence through DW1 and DW2 to the effect that the accused is an employee of the tea shop for the last 6 months. DW1 and DW2 are persons those who are engaged in business and they are local merchants conducting their shops near to the tea shop in question. Merely because DW1 and DW2 were deposed as defence witnesses, their evidence need not be ignored completely. The prosecution has not produced any licence issued by the panchayath in favour of the accused in conducting toddy shop. Even going by Exhibit P9, rent agreement dated 01.06.1998, it can be seen that there was specific endorsement to the effect that the shop can be conducted only after obtaining a proper licence from the panchayath. In the absence of any positive evidence that the accused was conducting the tea shop especially when DW1 and DW2 deposed that they were working only as employees of the tea shop, I am of the opinion that the accused cannot be linked with the alleged seizure of the illicit Crl.A.1588 of 2003 11 liquor from the tea shop. 10. It is also relevant to note that none of the prosecution witnesses has a case that the sample was taken from the spot and the same was sealed and separately packed and forwarded to the court. Neither investigating officer nor detecting officer has drawn sample from the spot and what reached in the chemical lab is not the sample taken by such officers. Therefore even though Exhibit P10 chemical analysis report has issued by the lab authorities, it cannot be said that the said report was pertained to what alleged to have recovered from the accused. Therefore according to me, the prosecution has miserably failed to prove that what alleged to have recovered from the possession of the accused is illicit liquor. Even though it is claimed sample sent from the court for that also no details supported by evidence. 11. In this connection it is relevant to note that though the prosecution has cited PW3 and PW4 to prove Exhibit P1 mahazar and the seizure, they were turned hostile to the prosecution. The rules mandate that at the time of seizure of Crl.A.1588 of 2003 12 contraband article it is incumbent upon the detecting officer to make the seizure in the presence of local witnesses who are respectable persons in the locality. But in the present case PW3 and PW4 are persons brought from outside, while several people are available in the locality. Therefore even if PW3 and PW4 turned hostile to the prosecution it cannot be said that they deposed against the prosecution with view to help the accused. Thus it can be seen that there is no independent witnesses to corroborate the evidence of PW1, PW2 and PW4. Of course even there is no independent witnesses court can act upon a deposition of official witnesses provided their evidence are free of doubt and easily acceptable. In the present case, as pointed out earlier there is no material to show that PW1 went to the spot in pursuance to a prior information, though PW1 claimed that he got such information. Even after the alleged detection and during the investigation conducted by PW5, he also failed to verify whether PW1 has got any such information. It is also came out in evidence that there is no proper sampling was conducted by the detecting officer and therefore there is no Crl.A.1588 of 2003 13 assurance and credible evidence to show that what examined by the chemical lab is the representative sample of the liquid which alleged to have recovered from the possession of the accused. It is also clear from the evidence of prosecution that none of the prosecution witnesses have drawn sample and there is no evidence as to how the sample was drawn and who effected the same. Since the alleged place of occurrence and the place where the contraband article seized, is a place accessible to everybody, the prosecution ought to have been adduce evidence to show that the accused has intentionally placed the same and in the absence of prosecution evidence in that regard, I am of the view that the prosecution evidence cannot be accepted and especially when the same is uncorroborated by independent evidence. 12. Even going by the prosecution allegation, the quantity involved is only 3 litres and the liquor is Vorion Doctors Brandi, Indian Made Foreign Liquor and the same was clear from the label printed on the bottles and the bottles were properly packed and sealed in the factory. As on toddy possession of the same is not punishable and it is only permissible quantity. Crl.A.1588 of 2003 14 13. In the light of the above facts, circumstances and discussions, I am of the view that the prosecution has miserably failed to establish the case against the accused beyond reasonable doubt and therefore he is entitled to get the benefit of doubt. In the result, this appeal is allowed. The judgment of the trial court is set aside and the appellant/accused is acquitted of all the charges leveled against him. The bail bond if any executed by the accused stand cancelled. V.K.MOHANAN, JUDGE pac