IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 13TH SEPTEMBER 2010 / 22ND BHADRA 1932 CRL.A.No. 371 of 2008() ----------------------- (SC.571/2003 OF OF THE ADDITIONAL SESSIONS COURT (ABKARI CASES), KOTTARAKKARA) APPELLANT(S): -------------- SHAJI, C.NO.2474, CENTRAL PRISON, TRIVANDRUM. BY ADV. SRI.AJITHKUMAR (STATE BRIEF) RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. PUBLIC PROSECUTOR SRI. K.S. SIVAKUMAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. Appeal No. 371 of 2008 ----------------------------------------------- Dated 13th September, 2010. JUDGMENT The accused was charge-sheeted for offence under Sections 55(a)(i) and 8 (1) and (2) of the Abkari Act. The trial court framed charge against the accused under Section 55(a) and (i) of the Abkari Act. After trial, the court found that the accused has not committed offence under Section 55(i). But, he was convicted for offence under Section 55(a) of Abkari Act. He was also sentenced to undergo simple imprisonment for three years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, he was sentenced to undergo simple imprisonment for six more months. 2. According to prosecution, PW4, the Sub Inspector was on patrol duty on 14.9.2001 in the evening along with police party which includes PW3. On getting information that contraband article was being sold from the courtyard of the house of the accused, they reached the place of occurrence and they found the accused sitting on a rock adjacent to the [Crl.A.No.371/2008] 2 “mud-cutting” and was also found in possession of a Can and a glass. The articles were kept concealed close to his body. The Can, on examination, contained 5 litres of arrack. The glass and the can were seized under a mahazar Ext.P1. Two samples were also taken. The accused was arrested from the spot and articles seized and the accused were taken to the police station. A crime was registered and the F.I.R. is Ext.P3. After investigation PW5, the sub Inspector laid the charge. 3. To prove the prosecution case, PWs 1 to 5 were examined. Exts.P1 to P5 and MOs1 to 3 were marked. The accused did not adduce any evidence. While questioning the accused, he stated that he is absolutely innocent of the allegations made. According to him, he filed a complaint against his neighbour, since the water in his well was polluted by the leaves of the rubber trees which were standing in the rubber plantation of his neighbour. He is absolutely innocent of the allegations made. 4. The trial court found, on an analysis of the evidence in this case, that the oral testimony of PWs 3 to 5, who are [Crl.A.No.371/2008] 3 the Excise officials, is believable. It was also found that there is no inconsistency in the evidence relating to the place of occurrence. The trial court also held that immediately on seizure the contraband articles were entrusted to PW4 and those were produced before the court on 15.9.2001 without unnecessary delay. It was also held that the testimony of PWs 4 and 5 together with Ext.P4 would show that material objects were kept in safe custody till they were produced in court. 5. Though a State Brief was appointed, he has not argued the case. When the case was called he was absent. Hence, I have gone through the case records. Heard learned Public Prosecutor also. On going through records, I find that the appellant had challenged various aspects during cross- examination. He put forward a plea of innocence and also a plea of false implication. In the above circumstances, a stricter scrutiny of the evidence is essential. 6. While doing so, the first and foremost aspect which attracted my attention is regarding proper custody of material objects before those were produced before court. [Crl.A.No.371/2008] 4 The case of the appellant, as revealed from the cross- examination, is that there is violation of the provisions contained in Section 40(3) of the Abkari Act regarding the production of material objects. A reading of sub-section (3) of Section 40 shows that every person (arrested under certain previsions of the Act specifically stated therein) shall be produced before the officer empowered under Section 5A or to the Abkari Inspector without unnecessary delay or the articles shall be produced before the officer in charge of the near police station. 7. The case of PW4, who is the detecting officer is that he seized MOs.1 to 3 and produced the same before PW5. The articles were allegedly seized on 14.9.2001 at about 5.20 p.m. and the F.I.R. was registered at 8 p.m. But the evidence of PW5 shows that the articles were not produced before him on 14.9.2001 as claimed by the detecting officer. When PW5 was asked whether on 14.9.2001, the case records and the material objects were produced before him by PW4, he stated that he was not “aware of it”. He added that the production of the articles was on 15.9.2001. He had [Crl.A.No.371/2008] 5 taken the articles into custody only on the next day of incident. He also did not state from whose custody he took the articles. 8. It has also come out from the evidence of PW5 that the articles were not shown to SHO, and according to him, there was no necessity to do so. He also clarified that he was not the SHO at the time of detection of the offence. According to him, he took up the investigation only on the next day on 15.9.2001, and the material objects were entrusted to him only on that day. From the evidence of PW5, who is the Sub Inspector, it is very clear that he did not receive the material objects seized from the place of occurrence on the date of occurrence itself. 9. It was only on the next day that PW5 received the contraband articles seized in this case and he has not stated from whose custody he received it. The evidence of PW4 also does not reveal whether he entrusted the articles to PW5, the S.I. of Police. Though his definite case was that he handed over the articles to PW5, he has not stated on which day he handed over the same to him. He has no case that [Crl.A.No.371/2008] 6 he had kept the articles in his own custody until the articles were produced before PW5. The evidence of PW4 is shabby regarding safe custody the material objects after the seizure. It is also not in evidence in whose custody the articles were, until those articles were produced before PW5. It is not in evidence from whose custody PW5 received the articles. In such situation, there is violation of Section 40(3) of the Abkari Act. 10. The statutory violation gains more significance, since it has come out from evidence of PW4 that no seal is seen affixed on the material objects. It is also brought out in evidence that the colour of the Can was not stated in Ext.P4. In such circumstances, the prosecution failed to establish whether MO1 was the Can which was seized from the custody of accused, as alleged by prosecution on 14.9.2010 and whether such article was in safe custody until it was produced in court. It is admitted that the material objects were produced in court only in 2001, though according to PW5 he had taken the material objects in his custody, on 15.9.2001. PW5 has no case that the articles were kept in [Crl.A.No.371/2008] 7 safe custody till those were produced in court. He stated in cross-examination that PW5 entrusted the articles to the SHO, after he took the material objects in custody. But he himself admitted that there are no documents to prove the same. A suggestion was made that the delay in production of material objects was caused to falsely fabricate a case. 11. In the light of the shabby evidence regarding the proper custody of the material objects till they were produced in court, an accused ought not to have been convicted on the ground that the articles seized from his possession was reported to be arrack as stated by the prosecution. There is every possibility of tampering with the material objects and it is not clear from whose custody the material objects reached the court. So, based on a sample sent for chemical analysis the accused cannot be said to be guilty of possession of arrack under Section 55(a) of Abkari Act. 12. In this connection, it is also relevant to note that there are contradictions in respect of the place of occurrence. As per the charge-sheet the incident happened [Crl.A.No.371/2008] 8 in the courtyard of the house of accused. PW3 stated that the accused was found sitting on a rock and that the rock was situated 'above' the mud-cutting and the rock was also slanting towards the southern side. However, in the evidence of PW5, he deposed that the mud-cutting was having only a height of 1 metre but the height of the rock was just 1 foot. According to PW5, the accused was found standing on the mud-cutting which was having a height of one metre. The evidence of PW3 also does not tally with the details shown in Ext.P1 regarding the lie of the property on the western side of the property. 13. There are also contradictions in the evidence of PWs 1 and2 regarding mud-cutting and the rock where the accused was allegedly found. PW3 could not deny the suggestion made whether on western side of the property there was rubber plantation or paddy field. Hence, it was suggested to him that he had no gone to the place of occurrence. 14. Taking all these facts into consideration, I find that prosecution has not established its case beyond reasonable [Crl.A.No.371/2008] 9 doubt. Though accused was found in possession of the article which was allegedly seized from him and sent for chemical analysis, there is no convincing evidence that the articles produced in court were the same as those seized from accused. In such circumstances, the conviction and sentence passed against appellant are liable to be set aside and I do so. In the result, the following order is passed: 1) The conviction and sentence passed against the appellant for offence under Section 55(a) of Abkari Act are set aside. 2) The appellant is found not guilty and acquitted of the offence under Section 55(a) of the Abkari Act. 3) Appellant is set at liberty forthwith. 4) Issue release order forthwith, if the appellant is still in custody. Appeals is allowed. K. HEMA, JUDGE. Krs.