IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 CRL.A.No. 1561 of 2003() ------------------------ SC.379/2000 of ADDL. SESSIONS JUDGE, FAST TRACK NO.1 MANJERI CP.60/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT, NILAMBUR .................... APPELLANT(S): -------------- THANKACHAN, S/O. KESAVAN, PUNNASSERI, VAZHIKADAVU VILLAGE, MALAPPURAM DISTRICT. BY ADV. SRI.P.VIJAYAKUMAR RESPONDENTS/COMPLAINANT: ----------------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE EXCISE INSPECTOR, NILAMBUR, EXCISE RANGE, NILAMBUR, MALAPPURAM DISTRICT. BY PP SRI. K.S SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA ,J. ------------------------- Crl.A No. 1561 of 2003 -------------------------- Dated this the 24th May, 2011 J U D G M E N T This appeal arises from conviction and sentence passed against the appellant under Section 55 (a) of Kerala Abkari Act (hereinafter referred to as “Act” for short) to undergo three years rigorous imprisonment and to pay a fine of Rs.One lakh and in default to undergo rigorous imprisonment for one year. 2. According to prosecution, on 9.6.1998 PW1 the Preventive Officer was on patrol duty along with other Excise Officials. They found the accused carrying a can MO1 while standing by the side of a river on the western side of the house of one Johny. They approached the accused and examined MO1 and it was found to contain 2 ½ litres of illicit arrack which was tested by smell and taste. Accused was arrested from the sport and sample was taken from the arrack found in MO1 can. 3. Articles were seized under the Mahazar Ext.P3. Ext.P1 is the arrest memo and Ext.P2 is the arrest notice. A case was registered and after investigation a report was Crl.A No.1561 of 2003 2 filed alleging offence under Section 8 (1) r/w Section 55 (a) of Abkari Act. 4. To prove the prosecution case, PW1 to PW6 were examined and Exts.P1 to P7 and MO1 were marked. On an analysis of the evidence in the case and the contentions of the appellant, the court below found that the prosecution succeeded in establishing the guilt of the accused. It was also held that accused did not make any attempt to prove that a false case is foisted against him under the influence of a light grow as alleged by him. 5. Heard both sides. Perused the records. Learned counsel for the appellant put forward the following arguments. (i) Ext.P1 arrest memo did not show the place from where the accused was arrested; (ii) The witnesses in Ext.P2 arrest notice and the witnesses in Ext.P3 are different; (iii) There is only one witness to Ext.P3. (iv) PW1 stated that the seizure was effected in the presence of witnesses but Ext.P3 shows only one person as the attesting witness. Crl.A No.1561 of 2003 3 6. On hearing both sides and on going through the records, there can be no doubt that on the above arguments, the findings of the trial court cannot be interfered with. However, on going through the records and documents and the relevant provisions, I find that there is violation of Section 36 of the Act in this case. In a case in which the accused was found carrying a tin containing arrack, this Court held in Ramachandran Nair Vs. State [1990 (1) KLT 44] that in the absence of two witnesses to the search and on failure of the prosecution to give any explanation for non-compliance with the conditions in the proviso to Section 36 of the Act, the accused cannot be convicted. 7. It was a case where the Preventive Officer conducted a search as he had reasonable suspicion that the accused was carrying illicit liquor. He opened the tin smelt and tasted the contents and he was satisfied that it was illicit arrack. But in that case, there is only one witness to the search and seizure. Rival contentions were put forward regarding the applicability of Section 36 of the Act in the Crl.A No.1561 of 2003 4 said case. This Court after considering the rival contentions held that as per Section 36 at least two independent persons must be called upon to attend and witness search. It was also held that it must be understood that it denotes minimum number required for performance of search. 8. Referring to the number of witnesses referred to in Section 36, it was held in the above decision that when it falls below the minimum number, the officer who makes the search has a duty to explain the reason for not reaching to the minimum requirement. If such explanation is acceptable to the court, seizure or search may not be vitiated. But no hard and fast rule can be laid down that non-compliance with statutory conditions will or will not vitiate the action made by the officer. 9. A reading of Section 36, particularly proviso shows that the persons called upon to attend and witness searches under the Act shall include at least two persons neither of whom is an Abkari, Police or Village Officer. In the light of the dictum laid down in the decision cited above, if the minimum requirement is not there, there must be Crl.A No.1561 of 2003 5 satisfactory explanation from the prosecution for the non- compliance. But in this case there is no explanation why only one witness was made to witness the seizure. It appears from the evidence of PW1 himself coupled with the documentary evidence that there were more than one person at the scene. 10. It was brought out from the evidence of the official witnesses that there was only one witness to the search and seizure, but in the arrest memo two witnesses had also signed. If the prosecution case is accepted the arrest and seizure were simultaneously effected. There is thus, non- compliance of proviso to Section 36 of the Act but it is not explained by the prosecution. 11. The non-explanation gains significance, particularly in the light of the defence set up by the accused. He has a definite case that this is a false case foisted against him, at the instance of an arrack shop owner whose shop was set fire to. He influenced the Excise Officials to implicate the appellant in a false case. He has a definite case that no seizure was effected from his possession, as alleged by the Crl.A No.1561 of 2003 6 prosecution from the place of occurrence. In this context, the details in Exts.P1, P2 and P3 are to be looked into, as against the evidence given by the official witnesses examined in this case. Even though PW1 deposed that search and seizure were effected in the presence of more than one witnesses, there is no explanation why only one witness attested Ext.P3 mahazar. That apart, the arrest notice is seen issued to one person, who is a witness in Ext.P3 and who is the sole independent witness to the occurrence. 12. The attestor to Ext.P3 who also signed in Ext.P2 was examined as PW3. He turned hostile to prosecution and denied the entire incident stating that no seizure of arrack took place from the possession of accused on the date and time. According to him, he was asked to go to the Excise Office to take the accused on bail. But when he went there he was asked to sign. The presence of signature of PW3 alone in Exts.P2 and P3 probabilise the defence case rather than the prosecution case. Crl.A No.1561 of 2003 7 13. Apart from that, in the arrest memo Ext.P1, two witnesses have signed and they are described as neighbours. The particulars of these witnesses and address of the accused are totally different in respect of amsom and desom and still they are shown as neighbours. Altogether some doubt is cast on the entire prosecution case, it is difficult to believe that an incident as alleged by the prosecution took place on the date of occurrence. 14. In addition to this, as per the prosecution case, 2 ½ litres of arrack were seized from the possession of appellant and out of this 300 ml was taken as sample. The list of the articles seized which was forwarded to the Court is marked as Ext.P6. It contains the details of two articles. The articles are 2 ½ litres of arrack +300 ml of arrack. It is a second item which was sent for chemical analysis, which is reported to be there. Therefore, the source of the article sent for analysis is also doubtful. 15. The discrepancy in the list in Ext.P6 is also not explained by the prosecution. Taking all these facts into consideration, the conviction and sentence passed against Crl.A No.1561 of 2003 8 the appellant are unsustainable. The trial court has not analyse the evidence in the right perspective nor has it understood the merit of the defence set up by the accused. In the above circumstances, the following order is passed. (i) The conviction and sentence passed against the appellant under Section 55(a)the Abkari Act are set aside. (ii) The appellant is found not guilty of offence under Section 55 (a) of the Abkari Act and he is acquitted of the said offence. (iii) The appellant is set at liberty forthwith. The appeal is allowed. Sd/- K.HEMA, JUDGE ma /True copy/ P.A to Judge