IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 29TH SEPTEMBER 2008 / 7TH ASWINA 1930 Crl.Rev.Pet.No. 942 of 2001() -------------------------------------- CRA.235/1998 of ADDL. SESSIONS COURT, ALAPPUZHA CC.271/1997 of JDUL.MAGISTRATE OF FIRST CLASS, RAMANKARI .................... REVN. PETITIONER(S): ---------------------------------- SUNIL S/O . RAMANKUTTY, SETTLEMENT COLONY, NO. 26, MAMPUZHAKARY, WARD NO. IV, RAMANKARY. BY ADV. SRI.SAIBY JOSE KIDANGOOR RESPONDENT(S): ------------------------- THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, RAMANKARI. BY PUBLIC PROSECUTOR SRI. C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------ CRL.R.P.No. 942 of 2001 ----------------------------------- Dated this the 29th day of September, 2008 O R D E R Revision petitioner along with the second accused was charge sheeted by Ramankary Police for offences punishable under Section 57A(i) and (iii) of the Abkari Act for alleged possession and sale of illicit arrack. Learned Magistrate found the second accused not guilty and acquitted him. Revision petitioner was found guilty for the offence under Section 55(a) of the Abkari Act, convicted and sentenced to undergo R.I for one year and to pay a fine of Rs.25,000/-. In appeal the conviction and substantive sentence were confirmed but fine was modified as Rs.5,000/-. 2. Heard counsel for revision petitioner and Public Prosecutor. It is argued by learned counsel that conscious possession of the contraband with revision petitioner is not proved. 3. Perused the records. 4. Case is that at Pulincunnu on the eastern side of Mangalasserichira House, Circle Inspector and party found revision CRL.R.P.No. 942/2001 2 petitioner and second accused in (joint) possession of 80 packets of illicit arrack kept in a gunny bag while Circle Inspector and party were on patrol duty on 2/03/1997 at about 12.30 P.M. Revision petitioner and accused were arrested at the spot and the contraband was taken to custody as per Exhibit P1, mahazar. Circle Inspector registered the case. Sub Inspector conducted the investigation. 5. PWs 1 to 3 were examined by the prosecution to prove the alleged incident but they refused to support. PWs 2 and 3 admitted that they signed Exhibit P1, Mahazar. PW3 stated that he signed Exhibit P1 towards eastern side of Mangalasserichira house (i.e. near the alleged place of occurrence). PW5, detecting officer and PW4, head constable accompanying him gave evidence regarding the alleged incident and identified MO.1 series, 76 packets containing illicit arrack. According to PW5, 4 packets were taken as sample. The contention advanced is that there is no evidence to show that revision petitioner was in conscious possession of the contraband. 6. Though it is stated in Exhibit P1 and P2 that revision petitioner and A2 were in (joint) possession of the contraband, it is not CRL.R.P.No. 942/2001 3 stated in what way they were possessing it. Since the contraband was allegedly kept in a sack, it is quite likely that it could not have been possessed by revision petitioner and A2, jointly. Probably understanding that difficulty, PWs 4 and 5 in the course of evidence stated that the sack was being carried by revision petitioner and that second accused was standing nearby. Since prosecution was unable to fasten the second accused with possession or even joint possession of the contraband, the trial court acquitted him. It is on the evidence of PWs 5 and 6 that revision petitioner was holding the sack containing arrack in packets that he was found guilty. 7. It is conceded that PWs 4 and 5 had not in their previous statements stated that revision petitioner was carrying the sack, not to say how he was carrying it whether, he was keeping it in his hand or on the head. PW4 was questioned about that. He had no definite answer. PW6, Sub Inspector stated that during the course of investigation none had told him that revision petitioner was holding the sack. It is therefore certain that it was for the first time in evidence that PWs 4 and 5 that sack was carried by revision petitioner. That CRL.R.P.No. 942/2001 4 statement is not corroborated by even their previous statement as provided under Section 157 of the Evidence Act. A conviction cannot be based on a mere statement made by the PWs 4 and 5 at the time of evidence as per their whims and fancies. Therefore, I am inclined to accept the contention that conscious possession of contraband by revision petitioner is not proved and hence conviction and sentence are liable to be set aside. Resultantly, revision petition succeeds. Conviction and sentence on revision petitioner are set aside and he is acquitted of the charge found against him. Bail bond is cancelled. THOMAS P. JOSEPH, JUDGE scm