IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 8TH FEBRUARY 2008 / 19TH MAGHA 1929 CRL.A.No. 1090 of 2002 SC.251/1999 of ADDL. SESSIONS COURT (ADHOC), KOZHIKODE .................... APPELLANT: ACCUSED: SOUMINI, D/O. RAMANKUTTY, THIYYAKANDY HOUSE, SIVAPURAM, KOYILANDY TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT: COMPLAINANT: STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.AMJETH ALI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/02/2008, THE COURT ON 08/02/2008 DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.1090 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of February 2008 JUDGMENT Appellant is the accused. She was found guilty by the Additional District and Sessions Court (Fast Track) Adhoc-I, Kozhikode under Section 58 of the Abkari Act and was accordingly convicted and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- and in default to undergo simple imprisonment for nine months. 2. Prosecution case may be briefly noticed. 3. On September 3, 1997 at about 4 p.m. the Preventive Officer and Excise Guard attached to Balussery Excise Range, with their patrol party, had conducted search in the residence of the appellant on receipt of reliable information that illicit liquor was stored there. But the Excise party could not effect any recovery from the residence of the appellant. However, the Excise officials seized 2.5 litres of illicit arrack kept in three plastic bottles (two bottles of 750 ml. each and one Crl.A.No.1090 OF 2002 :: 2 :: bottle of one litre) was recovered from a temporary shed used for storage of fire wood and situated near the residential building. The contraband was seized and a sample was taken (180 ml.). Other formalities were also completed by the Excise officials in the presence of two independent witnesses. Appellant was arrested and produced before the Excise Inspector. Later, the contraband was produced before the court and charge sheet was laid for the offence punishable under Section 55(a) of the Abkari Act after completing the investigation. 4. The prosecution examined PWs 1 to 6 and marked Exts.P1 to P8 and M.O.1 and M.O.2 on its side. PW1, the Preventive Officer deposed before the court that he had conducted a search of the residence of the appellant along with his patrol party after preparing a search memo which was arranged to be forwarded to the competent court. However, no contra band liquor could be recovered from the residence of the appellant. But when the temporary shed about 15 feet away from the residence of the accused was Crl.A.No.1090 OF 2002 :: 3 :: searched, 2½ litres of illicit arrack could be detected. The three bottles were dug underneath the firewood stored in the shed. Two bottles were having a capacity of 750 ml. each and one had a capacity of one litre. 180 ml. of liquor was taken as sample in a bottle. All the bottles were sealed and labelled in the presence of two independent witnesses and also the accused. Signatures of the accused and PW3 were obtained on the label. PW1 had also signed on the label. Ext.P1, mahazar and Ext.P2, search list were also prepared in which PW1 and the witnesses had signed. PW2, the Excise Guard, corroborated the version given by PW1 in his chief examination. 5. But in cross examination PW1 and 2 admitted that no signatures were found on the labels of the bottles which were marked in the case as M.O.1 series and M.O.2. It had also come out from the evidence of PW2 that the shed in question was situated in a lower segment ('tak') of the garden land which had a total extent of about 2 acres. It also came out in evidence that there were several residential buildings around Crl.A.No.1090 OF 2002 :: 4 :: the residence of the accused. Significantly, the prosecution had not produced any document to show that the shed belonged to the accused. Though PW5, the official of the local statutory Grama Panchayat had produced Ext.P5 to show that the residential building belonged to the accused, it was also admitted by PW2 that other people had free access through the entire property and that there was yet another residence nearby the residence of the accused which belonged to one Chandran and others. PW1 had deposed before the court that PW3, Madhavan Nair had informed him that the shed belonged to the accused. But PW3 in his deposition disowned any such statement. PW3 and 4, the two independent witnesses did not support the prosecution case in any manner. 6. It is true that the temporary shed was situated about 15m. away from the residential building of the accused. But in my view, the court below was not justified in assuming, particularly in the absence of any document, that the shed belonged to the accused. In this context, it may also be Crl.A.No.1090 OF 2002 :: 5 :: mentioned that PW1 had conceded that he could not remember from which part of the shed the contra band was recovered. 7. There is yet another aspect of the matter. M.O.1 series were forwarded to the court after about 5 days. No evidence was adduced by the prosecution to show that those material objects were kept in proper and safe custody till they were produced before the court. The delay in producing them before the court was also not properly explained. It is also revealed from the records that PWs 3 and 4 were questioned by the investigating officer/PW6 more than one year after the alleged incident. Strangely, it is seen that the investigating officer had obtained the signatures of the two witnesses in their respective statements which he could not have done. Anyhow, these witnesses had turned hostile to the prosecution. The contradictions in the statements given by these witnesses are seen to have been marked as Ext.P4 and P4(a). No reliance can be placed on those contradictions under any circumstances. Crl.A.No.1090 OF 2002 :: 6 :: I have carefully perused the judgment of the trial court. The discussion and reasoning of the learned Sessions Judge on the material aspects of the case in my view are not at all satisfactory. I have no hesitation to hold that the trial court was not justified in holding the appellant/accused guilty under Section 58 of the Abkari Act. Therefore, the order of conviction and sentence passed against the appellant/accused is set aside. The bail bond executed by her shall be cancelled and the sureties shall be discharged. Appeal is allowed. (A.K.BASHEER, JUDGE) jes Crl.A.No.1090 OF 2002 :: 7 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - Crl.A.No.1090 OF 2002 - - - - - - - - - - - - - - - - - - JUDGMENT Dated 8th Feb. 2008