IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 CRL.A.No. 1758 of 2008() ------------------------ SC.548/2007 of the IV ADDL. SESSIONS JUDGE (ADHOC -II), THODUPUZHA. .................... APPELLANT(S): -------------- PANKAJAKSHAN, C.NO. 3104, CENTRAL PRISON, TRIVANDRUM. BY ADV. SRI.SUNIL V.MOHAMMED (STATE BRIEF) RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. BY P.P. SMT. K.L.LAKSHMI RANI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A. No.1758 OF 2008 ---------------------------------------------- Dated, 14th October, 2008. This appeal arose at the instance of the accused who is undergoing imprisonment in pursuance of the judgment dated 17.7.2008 in S.C.No.548/2007 of the court of the IV Additional Sessions Judge (Adhoc-II), Thodupuzha for possessing illicit arrack. By the above judgment, on finding guilty for the offence under section 8(2) of the Abkari Act, (for short `the Act'), the accused/appellant is sentenced to undergo simple imprisonment for a term of two years and to pay a fine of Rs.1,00,000/-(one lakh only). 2. The prosecution case is that on 19.9.2007, at about 4 p.m., the accused was found selling arrack and also found possessing 1.100 litres of arrack at Anakuzhy - Pattayakkudi. PW.3 was the S.I. of police attached to Kaliyar police station during the relevant time. According to him while he was conducting patrol duty on 19.9.97, he got information that sale of arrack was conducting near the side of a stream, and accordingly, he proceeded to the spot along with the police party and reached the place of occurrence by 4 p.m. According to him, two persons were standing at the spot and he saw one of CRL.A.NO. 1758/08 -:2:- them pouring something into a glass from a bottle. It is his further case that on seeing the police party, both the persons tried to run away. But they were intercepted and the bottle which alleged to have been in the possession of one of those persons was seized and on test, realised that the liquid was arrack. Accordingly, after preparing arrest memo, the appellant/accused was taken into custody and the contraband articles were seized as per Ext.P1 mahazar. The bottles were also seized under Ext.P6 inventory. After the seizure and arrest, PW.3, the S.I of police, Kaliyar reached in the police station where Ext.P3 FIR in crime No.218/2007 of Kaliyar police station was registered for the offences under sections 10 and 55(a) of the Act. (Counsel for the appellant pointed out that Sections of the offence shown in the judgment may be due to mistake and actually the police registered the FIR and final report only under sections 55(i) read with 8(1) and (2) of the Act). After completing the investigation, final report was filed before the Judicial First Class Magistrate-1 Thodupuzha wherein, the case was instituted as C.P.No.81/2007 and on taking cognizance, by order dated 1.11.2007 in C.P No.81/2007, the learned Magistrate committed the case to the Sessions Court where S.C.No.548/2007 was CRL.A.NO. 1758/08 -:3:- instituted and subsequently made over to the trial court for trial and disposal. The trial court framed charge dated 11.1.2008, against the accused after hearing him, for the offence under sections 55(i) and 8(2) of the Act to which he pleaded not guilty which resulted in the further trial of the case during which PWs 1 to 3 were examined from the side of the prosecution and Exts.P1 to P7 were marked as documentary evidence. No evidence, either oral or documentary, adduced from the side of the defence. Material objects, M.O.1 and M.O.2 were marked during the trial. After closing the prosecution evidence and on examination of the accused under section 313 Cr.P.C., he took a stand of total denial. On the basis of the rival contentions, the court below formulated three issues for its consideration. Finally, the court below found that the accused /appellant is guilty of the charge framed against him and accordingly, he is convicted and sentenced him to undergo simple imprisonment for a term of two years and to pay a fine of Rs.1,00,000/-(one lakh only). In case of default, he is directed to further undergo simple imprisonment for a period of six months. It is the above conviction and sentence being challenged in this appeal by the appellant/accused from the jail. 3. The appeal is prosecuted by Mr. Sunil V.Muhammed who CRL.A.NO. 1758/08 -:4:- is appointed as State brief. Heard the learned counsel for the appellant as well as the learned Public Prosecutor. 4. The specific case of the prosecution is that while PW.3 and police party conducting patrol duty, they got information that illicit arrack was being sold at a property near a stream and accordingly, the police party went to the spot and reached there by 4 p.m.. It is the further case of the prosecution that thus when PW3 and party reached the spot, they saw two persons standing at the spot and out of the two persons, one man was seen pouring some kind of liquid into the glass. It is also the case that when the police party approached the persons, they tried to run away from the spot but intercepted and on questioning, identified the person who was in possession of the bottle as the accused. It is the further case of PW.3 that in the presence of the witnesses who arrived at the spot, the liquid was identified as illicit arrack and the contraband article in the bottles were seized into custody. Ext.P1 seizure mahazar prepared at the spot of which PWs 1 and 2 were the attesting witnesses. After the arrest and seizure of the contraband articles, PW.3 and party returned to the police station and registered Ext.P3 FIR. Ext.P6 is the inventory prepared connected with the seizure of bottles and CRL.A.NO. 1758/08 -:5:- other items. Ext.P4 and P5 respectively are the property list and forwarding note submitted before the court. Ext.P7 is the chemical analysis report. Ext.P2 arrest memo and Ext.P3 FIR, Ext.P4 property list, Ext.P5 forwarding note, Ext.P6 inventory and Ext.P7 chemical analysis report marked through PW.3. Ext.P1 seizure mahazar marked through PW.1. PWs 1 and 2 independent witness cited by the prosecution to prove seizure of the contraband article were turned hostile. However, after consideration of the entire evidence and materials on record, the trial court found that the accused is guilty and accordingly, convicted and imposed the above sentence. 5. The learned counsel for the appellant submitted that the prosecution has miserably failed to establish the case beyond reasonable doubt and hence, the appellant/accused is entitled to get acquittal. It is pointed out by the learned counsel that though three witnesses were produced by the prosecution to prove seizure and other part of the prosecution, except the testimony of PW.3, there is no other evidence to support the prosecution case and the deposition of PW.3 is not corroborated from any independent source. It is also pointed by the learned counsel that the deposition of PW.3 is not free from doubt. The evidence CRL.A.NO. 1758/08 -:6:- adduced by the prosecution through PW.3 is contradictory in nature and the contemporary documents also are not recognizing the correctness of the oral evidence given by PW.3. The learned counsel further pointed out that even according to the prosecution, at the time of the so called detection, seizure and arrest, there were police constables along with PW.3 but they were not examined by the prosecution though they were cited as witnesses. Thus according to the counsel, except the interested testimony of PW.3 - that too, not beyond doubt and full of contradiction- there is no independent evidence to corroborate the prosecution version. 6. Per contra, the learned Public Prosecutor submitted that the accused was arrested from the spot along with the contraband article and the articles were produced before the court without any delay, and without any room for any manipulation. She has also submitted that there is no legal bar in acting upon the deposition of the official witnesses. In support of the above submission, she had placed reliance in the decisions of this Court reported in Sathi v. State of Kerala (2007 (1) KLT Short notes 57 (case No.82) and also Vikraman v. State of Kerala (2007(1) KLT 1010). Thus, according to the CRL.A.NO. 1758/08 -:7:- learned Public Prosecutor, the prosecution has established the case against the accused and no interference is warranted. 7. I have carefully considered the rival contentions and also perused the evidence and materials on record. As per the charge framed by the court below, the accused had to face trial for the offence under sections 55(i) and 8(2) of the Act. Thus the crux of the prosecution allegation is that the accused was found in possession of illicit arrack. As per the impugned order, the court found in favour of the prosecution and against the accused and he is sentenced to undergo two years simple imprisonment and further ordered to pay a fine of Rs.1,00,000/- and in case of default, to undergo simple imprisonment for six months. Going by the evidence of PW.3, it can be seen that PW.3 himself and the patrol party reached at the spot in pursuance of an information received by him while he was on patrol duty. The details of such information is not given anywhere. However, it is stated that when they reached the spot, PW.3 saw two persons standing at the spot and among them one person was seen pouring some liquid into a glass. Thus, according to PW.3, he prepared Ext.P1 seizure mahazar, Ext.P2 arrest memo, Ext.P3 FIR and other documents which were produced during the trial. CRL.A.NO. 1758/08 -:8:- PW.3 during his chief examination deposed that the bottle was full which is a one litre capacity bottle and the same was illicit arrack. It is also his case that another bottle having the capacity of one litre which was on the ground was containing only 100 ml. arrack. During the cross examination, he had deposed that the jeep was stopped at Pulikkathotty junction and the police party reached the spot by walking. It is also his case that at the place of occurrence there was only a floor of a house and the jeep was stopped at the eastern direction of the place of occurrence and they reached the spot after crossing a bridge and he saw the place of occurrence after 10 metres from the place where the jeep was stopped. It is also stated that they had seen the accused pouring liquid from the bottle to a glass at a distance of 30 metres. He had stated that they had intercepted the accused and when he intercepted and examined the accused, there was no arrack in the glass. It is also his case that from the time of seeing the accused and till the time of his arrest, the glass was not changed. It is his specific case that sample was taken from the bottle which was seen at the place of occurrence. It is also stated by PW.3 that there was a shed near the place of occurrence. According to him, he came to know that the CRL.A.NO. 1758/08 -:9:- accused was residing in that shed and he did not conduct any investigation in the punchayat or village to ascertain as to who is the owner of the shed. He had also stated that in the mahazar, those persons who came to the spot made as witness. According to him, he did not inspect the shed. According to PW.3, when he reached the spot, he saw the accused pouring illicit arrack from a bottle to a glass but at the same time he stated that the bottle was containing full of illicit arrack and there was no consequent reduction in the quantity. Pointing out the indigestive version of PW.3, the learned counsel for the appellant submitted that PW.3 cannot be believed for a moment. The learned counsel invited my attention to Ext.P1 seizure mahazar prepared by PW.3 wherein it is stated that the bottle contained full of illicit arrack and the capacity of the bottle is one litre. In the seizure mahazar it is also stated that the bottle which was lying on the ground was containing only 100 ml. of illicit arrack. In the cross examination, PW.3 has categorically stated that the sample was taken from the bottle which was seen at the scene of occurrence. Thus on an over all assessment of the evidence of PW.3, there is sheer contradiction regarding the sampling and thereby the alleged possession. During the chief examination, he CRL.A.NO. 1758/08 -:10:- had stated that he had seen the accused pouring illicit arrack from the bottle to the glass but there is no consequent reduction in the volume of the content of the bottle. In the cross examination, he stated that the sample was collected from the bottle which was lying on the ground. The specific case of the prosecution and PW.3 is that when PW.3 went to the spot, two persons were standing there and one among them was holding a glass. The other person was not arrested and was traced out and there was no explanation as to how he happened to be there in the spot. Therefore, the argument of the counsel for the appellant that the contraband article was abandoned by the person who was not traced out, cannot be ignored. It is also relevant to note that PW.3 said that there was a shed at the place of occurrence but he did not conduct investigation about the person who is the owner and in possession of the shed. When PW.3 failed to depose correctly regarding the possession of the contraband article, the failure on the part of PW.3 to conduct investigation against the person who is the owner of the shed, assumes importance. Now it is evident from the evidence of PW.3 that the sample was taken from a bottle which was not in the physical possession of the accused but the same was seized from CRL.A.NO. 1758/08 -:11:- the ground where the shed was situated. Therefore, it cannot be ruled out that the contraband article was belonging to the owner of the shed. 8. As pointed out by the learned counsel for the appellant that the non examination of CWs.3, 4 and 5 assumes importance in this juncture. Even PWs 1 and 2, the independent witness turned hostile, the prosecution case could have been proved by examining CW3, 4 and 5, the persons alleged to have in the company of PW.3 at the time of detection and seizure and arrest. There was no legal bar for the prosecution to examine those witnesses, especially , in the light of the fact that PWs.1 and 2 turned hostile to the prosecution. But no step was taken to examine those prosecution witnesses. Of course, the evidence is not to be counted but to be weighed. But in the present case, the evidence of PW.3 is not free from doubt and contained contradictions and the documentary evidence such as Ext.P1 contemporaneous document goes against the oral deposition of PW.3 with respect to the possession of the bottle. Therefore, the non examination of CWs. 3, 4 and 5 is fatal to the prosecution. 9. It is also relevant to note that PWs.1 and 2 who were made as witnesses for the seizure are the persons those who CRL.A.NO. 1758/08 -:12:- came subsequent to the detection of the offence. Even according to the PW.3, he did not procure the presence of PWs 1 and 2 or any other persons from the locality at the time or before the detection of the offence. The failure on the part of PW.3 for not obtaining local witness before the detection assumes importance in this case because PW.3 and party went to the place based upon a prior information and therefore they could have secure the presence of witnesses from the locality even at the time of detection. It is also came out in evidence that out of the two persons, who were standing when PW.3 reached the spot, except the accused, the other person was not traced and his role is not ascertained. The above facts and circumstances cast serious doubt regarding the correctness of the prosecution case. The learned Public Prosecutor on the strength of the decision reported in Sathi v. State of Kerala (2007(1) KLT S.N. 57,case No.82) and Vikraman v. State of Kerala (2007 (1) KLT 1010), submitted that there is no legal bar in acting upon the deposition of official witnesses. In 2007 (1) KLT 1010 this Court has held that when evidence of the detecting officer is credible and believable, then the hostility of independent witness is not fatal in Abkari trials. In the present case, even according to CRL.A.NO. 1758/08 -:13:- PW.3, PWs 1 and 2 are persons came to the spot subsequent to the detection and therefore, though they turned hostile, it cannot be said that they turned hostile to save the accused. As pointed out earlier, the evidence of PW.3 is not inspiring the confidence of this Court as the same is against the contemporary documentary evidence and his deposition contains substantial contradiction. In the other decision namely, Sathi v. State of Kerala (cited supra), this Court has stated that if testimony of detecting officer is credible and free from blemishes, same can be accepted in proof of arrest, search and seizure notwithstanding unfriendly attitude shown by independent witnesses to mahazar. Because of the infirmities and contradictions contained in the deposition of PW3 as indicated above, and the artificial nature of his oral evidence, the above decision is not helpful for the prosecution. 10. In the light of the above facts and circumstances and discussion, I am of the view that the prosecution has miserably failed to establish the case against the accused beyond reasonable doubt and the accused is entitled to get the benefit of doubt. Accordingly, the conviction and sentence passed against the appellant/accused as per the impugned judgment are set CRL.A.NO. 1758/08 -:14:- aside. The accused is acquitted of all the charges levelled against him. He is directed to be released from the jail forthwith if he is not required in any other case. The appeal is allowed. V.K.MOHANAN, JUDGE kvm/- CRL.A.NO. 1758/08 -:15:- V.K.MOHANAN, J. CRL.A.NO.1758/2008 Judgment Dated: 14.10.2008