IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 11TH APRIL 2008 / 22ND CHAITHRA 1930 CRL.A.No.2097 of 2007 (B) -------------------------------- SC.349/2005 of ADDL. SESSIONS COURT (ADHOC)-II, ALAPPUZHA .................... APPELLANT: ACCUSED -------------------------- KAMALASANAN, S/O. LAKSHMANAN, AGED 40 YEARS, KOCHUPARAMBIL PADEETTATHIL, THAMALLAKKAL SOUTH, KUMARAPURAM VILLAGE, KARTHIKAPALLI TALUK. BY ADV. SRI.M.R.SUDHEENDRAN RESPONDENT: COMPLAINANT ----------------------------------- STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, KARTHIKAPALLI THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.2097 of 2007 ------------------------------------------------ Dated this the 11th day of April, 2008 JUDGMENT The appellant is the accused in S.C.349/05 on the file of the Additional Sessions Court (Fast Track Court-II), Alappuzha Convicted for offence under Section 8(1) and (2) as also under Section 55(a) of the Abkari Act and was sentenced to undergo rigorous imprisonment for a term of two years and to pay a fine of Rs.1 lakh and in default to undergo simple imprisonment for four months for offence under Section 8(1) and (2) of the Abkari Act with right of set off. However, no separate sentence was imposed on him for offence under Section 55(a) of the Abkari Act. It is aggrieved by the conviction and sentence so passed against him that he has preferred this appeal. Crl. Appeal No.2097 of 2007 -2- 2. The appellant stood indicted for offence under Section 8(1) and (2) of the Abkari Act as also under Section 55(a) thereof on the allegation that at 11.30 a.m. on 02/10/02 he was found keeping in his possession about 30 litres of arrack in three plastic cans each of 10 litre capacity for the purpose of sale in his house by name Kochuparambil Padeettathil in Thamallakkal muri in Kumarapuram village. After due investigation Final Report was submitted before the Judicial First Class Magistrate's Court-I, Haripad where it was registered as C.P.19/05. The learned Magistrate after complying with all legal formalities committed the case to the Sessions Division, Alappuzha vide proceedings in C.P.19/05. In the Sessions Division, Alappuzha the case was registered as S.C.240/05 and the Sessions Judge made over the case to the Additional Assistant Sessions Crl. Appeal No.2097 of 2007 -3- Court, Alappuzha. Subsequently, the case was withdrawn and made over to the Additional Sessions Court (Fast Track Court-II), Alappuzha by the Sessions Judge. 3. The Additional Sessions Judge (Fast Track Court-II), Alappuzha heard preliminary arguments in the case; framed charge against appellant for offence under Section 8(1) and (2) of the Abkari Act as also under Section 55 (a) thereof; read it over and explained it to the appellant and questioned him. Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted by the court below. 4. On the side of the prosecution PWs.1 to 7 were examined and Exts.P1 to P11(a) were got marked and MO1 series cans were got identified. On the prosecution closing their evidence the appellant was questioned under Section 313 Cr.P.C. Thereupon, he generally Crl. Appeal No.2097 of 2007 -4- denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. According to him, he is a coolie and from the place where he has gone for work he was being got down by sending his son and was being arrested and that he has no connection at all with the crime involved in this case. However he did not adduce any evidence in defence. 5. The learned Additional Sessions Judge who tried the case heard the arguments of both sides considered the case in the light of the evidence adduced as aforesaid; found the appellant guilty of offence punishable under Section 8(1) and (2) of the Abkari Act as also under Section 55(a) of the Abkari Act; convicted him thereunder and sentenced him as already stated. Hence, this appeal by the aggrieved appellant. Crl. Appeal No.2097 of 2007 -5- 6. It is vehemently contended before me by the learned counsel for the appellant that the witnesses to the occurrence are PWs.1 to 5 of whom PWs.1 to 3 who are the Excise Officials alone support the prosecution case; that PWs.4 and 5 have turned hostile and have not supported the prosecution case; that the evidence in the case will show that the building from where the alleged seizure was effected was not house belonging to the appellant but belonging to his maternal grand mother and there are other occupants also in the said house other than himself and that the investigating agency has not conducted any investigation as to whether the appellant has any connection at all with the alleged offence of storing arrack for the purpose of sale and that however, at the time of conduct of trial of the case by the court below MO1 can (3 Nos.) of 10 litre capacity were all empty and Crl. Appeal No.2097 of 2007 -6- there was no explanation as regards the same from the side of the prosecution; that on the whole, there is inconsistency that looms large in the prosecution case and however, there is no convincing evidence to establish the guilt in the appellant/accused and that therefore, the appellant should have been acquitted of the offences with which he stood charged. 7. Heard submissions of the Public Prosecutor as well. 8. PW1 is the detecting officer in this case. He was at the relevant time Excise Inspector (Enforcement) in Anti Narcotic Special Squad at Alappuzha. According to him, complaint was received that the appellant is storing arrack in his house and conducting sale thereof; that the Assistant Excise Commissioner of Alappuzha entrusted him to investigate into the complaint; that he conducted secret enquiries at Koothamkaitha Crl. Appeal No.2097 of 2007 -7- Junction in Kumarapuram Village in Karthikappalli thaluk and came to understand that the matters complained of in the complaint is true and felt the necessity of conducting search in the house of the appellant forthwith and consequently, he conducted a search of the house of the appellant preparing and forwarding search memo in that regard to the court. According to him, on search so conducted in the presence of the witnesses and the appellant, three cans each of ten litre capacity was found kept beneath a cot that was laid adjacent to the northern wall of the room in the middle of the said house and that on examination of the contents in those cans by smell and taste it was found that the contents was arrack and that therefore, he registered the case as against the appellant for having possessed arrack taking also the arrack in all the three cans Crl. Appeal No.2097 of 2007 -8- as material objects. He also stated that for the purpose of chemical examination 200 ml. of arrack was taken from each of the cans in three bottles of 375 ml. and the sample bottles as also cans were closed tied and sealed and lables were also affixed therein with signatures of himself the witnesses and the appellant/accused preparing Ext.P1 mahazar in that behalf. Ext.P2 is the search list and Ext.P3 is the search memo. Arrest memo recorded by PW1 is Ext.P4 and copy of notice issued to Ponnamma/the wife of the appellant is Ext.P5. However, at the time of examination of PW1 it was found that there was no arrack in any of the three cans and PW1 has stated that the Excise Inspector of Karthikapalli has filed a report in that behalf and that the said report is Ext.P6. The cans so produced are MO1 series. As per Ext.P6 report the arrack which was contained in the three cans Crl. Appeal No.2097 of 2007 -9- got drained as its bottom got broken and that the lables in two cans and the seal on one can is also lost. PW1 has stated that the 'thondi' articles along with the appellant was produced before the Karthikapalli Excise Range office for further steps being taken. In cross examination, he has admitted that he has not produced any record to show as to in which locality had duty been alloted to him and that though the search memo was prepared and was despatched to court through a forest guard who was on duty with him those details are not stated in the mahazar or by the witnesses when questioned. He further stated that he is not aware of the name of the guard with whom search memo was entrusted to be sent to court. Though the occurrence has taken place on 02/10/02 Ext.P3 was received in court only on 04/10/02. He has admitted in cross examination that the persons who are attestors to the Crl. Appeal No.2097 of 2007 -10- mahazar are not persons who assembled at the scene of occurrence but two others who came over to the place where the jeep had been parked and that too without ascertaining their details. He also admits that he is not aware as to what was the seal that was affixed while packing and sealing the material objects. However, PW1 admitted in cross examination that the lables which he affixed on MO1 series are not there at the time of his examination. Though PW1 has stated that from the ration card it was ascertained that the occupants of the house from which the seizure was effected are the appellant, his wife, his mother and his children, the said ration card has not been taken into banthavast. The suggestion put to him is that the appellant was not residing at all in that house though that is however, denied by PW1. The suggestion that MO1 series was being taken from a place 50 metres to the Crl. Appeal No.2097 of 2007 -11- North of the house alleged to have been searched is also denied by PW1 in cross examination though he admits that he has not made any enquiry as to whether the place is one where persons accused of having committed offence under the Abkari Act are having residence. PW2 has also admitted that there is no record to show as to what was his duty on the date of occurrence. Though according to PW1 the house that was searched was by the side of a channel and that it is adjoining the channel that the house of the appellant is located, PW2 who was accompanying PW1 in the detection and seizure has stated that he does not remember to have seen channel on any side of the house of the appellant. PW2 also is not aware as to with whom was search memo being forward to court. The suggestion put to PW2 is that no recovery at all was made by conducting any search within the house of the appellant Crl. Appeal No.2097 of 2007 -12- but that MO1 series were being recovered from the channel portion 50 metres towards north from the house of the appellant and that the appellant is not having any connection at all with the said contraband article though however the said suggestion is denied by PW2. PW3 the Secretary of Panchayath who has issued Ext.P7 ownership certificate in relation to the house has no direct knowledge at all as regards the said house or its owner and Ext.P7 certificate issued by him shows that one Kunhi is the owner of the said building wherein search was conducted. PW4 who has been examined as a witness to the occurrence has deposed in chief examination that the cans were being recovered from the Thodu and not from the house alleged to have been searched. A leading question was put in chief examination by the Prosecutor suggesting that Kunhi is the grand mother of the appellant to Crl. Appeal No.2097 of 2007 -13- which PW4 has answered that he does not know the name of the grand mother of the appellant but however, that the grand mother of the appellant has passed away. In cross examination PW4 has stated that in the house in the occupation of the appellant other than the appellant and his wife and two children, his mother as also his elder brother and his family are in occupation. The said statement given by PW4 is not assailed by the prosecution seeking leave to cross-examine on that aspect. PW5 has deposed that the excise party has caused him to sign in 2-3 blank papers. He has admitted his signatures in Exhibits P1, P2 and P4, but has disowned his signature in Exhibit P5. According to him, he was affixing his signatures in proof of recovery of three cans having been detected from the thodu and that he has not seen recovery of any article either from the Crl. Appeal No.2097 of 2007 -14- possession of the appellant or from his house. He has further stated in cross-examination that the excise party had already gone over to the house of the appellant in search of him; that the appellant was not there then and only his wife was there and that the appellant was being got down from the mill sending his son and it is thereafter that he was arrested and that the appellant was coming over there after the excise party had obtained the signatures from him in blank papers. 9. PW6 is the Excise Range Inspector of Karthikappally and he has deposed that investigation in the case was being conducted by him; that he has, however, not seen the thondi articles; that he has not gone to the house from where the recovery is alleged to have been effected and that his investigation revealed that the building wherein search was conducted stands in the name of the Crl. Appeal No.2097 of 2007 -15- grandmother of the appellant, but that in investigation he did not come to understand that the elder brother of the appellant with his family was also residing in the building along with the appellant and his family as also their mother. 10. PW7, the Taluk Supply Officer of Karthikappally Taluk, admitted that he was only issuing the renewed ration card on the basis of Ext.P11 declaration and that he was not aware as to who all were residing there in the said address. 11. The Investigating Agency has not conducted any investigation at all as to the source of arrack, which is stated to have been kept in MOs.1 to 3 cans beneath a cot in the house of the appellant. They have no case that any distilling of arrack is being conducted in the said house. They have also not conducted any enquiry as to whether the appellant is Crl. Appeal No.2097 of 2007 -16- one, who is engaged in sale of arrack or as to whether he had been a prior convict, having been engaged in commission of offences under the Abkari Act on earlier occasions also. Practically, there is only the evidence of PWs.1 and 2, who are respectively, the Detecting Officer and the Excise Official, accompanying him in the detection and seizure and the case alleged by them is not supported by PWs.4 and 5, who are the independent witnesses. 12. The contention of the counsel for the appellant is that the contraband were being recovered from an adjacent thodu and that the appellant has no connection at all with the contraband article and probably for suspicion that the appellant is the person who has kept it there the excise officials were registering case against the appellant. If at all a conviction is to be arrived at as against the Crl. Appeal No.2097 of 2007 -17- appellant that has to be solely based on the testimonies of PWs.1 and 2, who are the excise officials, accepting their testimony that seizure of the contraband articles were effected from the house of the appellant as alleged by them. 13. It is worthy to note that offence under Sections 8(1) and (2) of the Abkari Act as also under Section 55(a) thereof are serious offences inviting serious consequences of imprisonment up to a period of ten years and a minimum fine of Rupees one lakh. Such cases of very serious consequences are not to rest solely on the testimonies of the Detecting Officer and one of the Officers accompanying him, especially when their testimony do not inspire confidence in the judicial mind, in the circumstances brought out in evidence, on examination of PWs.4 and 5 as well. Appellant, in the circumstances, Crl. Appeal No.2097 of 2007 -18- should have been granted benefit of doubt and a consequent acquittal. The court below having not granted that benefit to the appellant, the conviction and sentence entered into by the court below against the appellant is unsustainable and deserves to the reversed. 14. In the result, allowing this criminal appeal, I set aside the conviction and sentence passed by the court below against the appellant and acquit him of the charge under Sections 8(1) and (2) of the Abkari Act as also under Section 55(a) thereof. He shall be set at liberty forthwith if at all he is in custody, as the counsel for the appellant submits that he is undergoing sentence in this case and is in jail only on account of the conviction and sentence in this case by the court below. K.P.BALACHANDRAN, JUDGE kns/-