IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 Crl.Rev.Pet.No. 1491 of 2001() ------------------------------ CRA.92/1996 of I ADDL. SESSIONS COURT, PALAKKAD .................... REVN. PETITIONERS/APPELLANTS/ACCUSED 1 AND 2: --------------------- 1. NANDINI, W/O.VELUKUTTY, NEDUNGOTTIL, PALOD DESOM THACHANATTUKARA VILLAGE, MANNARKKAD TALUK. PALAKKAD DISTRICT. 2. VELUKUTTY, S/O.AYYAPPAN, NEDUGOTTIL, PALOD DESOM, THACHANATTUKARA VILLAGE, MANNARKKAD TALUK, PALAKKAD DISTRICT BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. REPRESENTING THE EXCISE INSPECTOR, MANNARKKAD RANGE. PUBLIC PROSECUTOR SRI.I.V.PRAMOD THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.1491 of 2001 ---------------------------------------- Dated this the 14th day of July 2009 O R D E R This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 55(g) of the Kerala Abkari Act. The revision petitioners are spouses. The crux of the allegations against the revision petitioners is that on 14/09/1009 at 12.30 p.m when an excise party led by PW1, Preventive Officer, on receipt of prior information that the 2nd accused was keeping in his possession contraband articles in the house, came to the house of the 2nd accused and searched the premises. They found 35 litres of wash in a can kept in the kitchen of the said house. The prosecution alleged that the 1st accused (wife), who was present at the house as also the 2nd accused who was the owner of the house, who was absent at the relevant time in the house, have both committed the offence punishable liable to be prosecuted under Section 55(g) of the Kerala Abkari Act. 2. Cognizance was taken by the learned Magistrate. The accused denied the offence alleged against him. Thereupon the Crl.R.P.No.1491 of 2001 2 prosecution examined Pws 1 to 5 and proved Exts.P1 to P5. PW1 is the Preventive Officer who led the excise party and effected the seizure of the contraband article in MO1 can. PW2 accompanied him. Pws 3 and 4 are independent witnesses who had allegedly attested Ext.P1 seizure mahazer. PW5 had filed the charge sheet after completing the investigation. Ext.P1, as stated earlier, is the seizure mahazer under which MO1 was seized. Ext.P2 is the search list. Ext.P3 is the occurrence report. Ext.P4 is a certificate issued by the Executive Officer of the Local Panchayat to confirm that the 2nd accused is the owner of the house in question. Ext.P5 is the chemical examiner's report. Ext.P5 is actually a copy of the chemical examiner's report. As the original was not received, the chemical examiner was contacted. He informed that the original had already been sent; but as the same was not received, a copy of the same was furnished to the court. That copy is Ext.P5. 3. The accused, in the course of cross-examination of prosecution witnesses and when examined under Section 313 Cr.P.C, denied all circumstances which appeared in evidence and which were put to them. According to them, they were absolutely innocent. The accused took up a stand that they were not residing in the said house; but were residing elsewhere. No defence Crl.R.P.No.1491 of 2001 3 evidence was adduced. 4. The learned Magistrate initially entered a verdict of not guilty and acquittal. An appeal was filed before this court and this court remanded the matter to the court below for fresh disposal on the basis of the evidence available. Accordingly, the court below considered the matter afresh and entered the verdict of guilty and conviction. The appellate court upheld the said decision. 5. Before me, the learned counsel for the petitioners and the learned Public Prosecutor have advanced their arguments. The learned counsel for the revision petitioners assails the impugned order on the following grounds: i) The search conducted must be held to be not proper or valid inasmuch as no search memo was prepared and submitted to court prior to the actual search in contravention of Section 31 of the Kerala Abkari Act. ii) The courts below omitted to take note of the fact that, at any rate, the petitioners herein have not been shown to have conscious possession over MO1 can with contraband article. iii) At any rate, the courts below erred grossly in placing reliance on Ext.P4 which is the worst form of hearsay evidence possible. Crl.R.P.No.1491 of 2001 4 iv) The sentence imposed is, at any rate, excessive. 6. The learned counsel for the petitioner, first of all, contends that relying on the decision in K.L.Subhayya v. State of Karnataka [air 1979 SC 711] that there has been a crucial infraction of the provisions of Section 31 and hence the theory of seizure of MO1 from the house in question cannot be accepted. This contention which was urged before the courts below was repelled with the help of the decision in Dominic v. State of Kerala 1989(1) KLT 601]. The learned counsel for the petitioners contends that in the light of the later decision of the Supreme Court in Beckodan Abdul Rahiman v. State of Kerala [(2002)4 Supreme Court Cases 229] and State of Punjab v. Baldev Singh [AIR 1999 SC 2378] it ought to be held that infraction of the provisions of Section 31 and analogous provisions are fatal to the prosecution. 7. I have heard the learned counsel for the petitioner at length ; but I am not persuaded to agree that these questions deserve to be considered in detail in the light of the facts scenario emerging in this case. It is the very definite case of PW1 that the search memo was prepared before the search was conducted. Crl.R.P.No.1491 of 2001 5 There is no whisper of a cross-examination on this crucial and vital aspect. The available evidence does not at all shows that there was omission to prepare the search memo and submit the same to court before search was actually conducted. PW1 has asserted the same on oath; but he was not cross-examined at all. It is of course true that the search memo submitted to court or a copy thereof has not been marked. But that inadequacy notwithstanding, I find no merit in the contention that search memo has not been prepared and that there is consequently a breach of the provisions of Section 31. In the absence of a specific challenge against the oral evidence of PW1, the officer who led the excise party, I find no legs for this contention to stand on. The first contention must hence fail. 8. The learned counsel for the petitioners contends that, in any view of the matter, there is significant and total absence of evidence to show that the 2nd accused was the owner of the house in question. The ration card has not been produced. The extract of the property tax assessment registered in respect of the house has not been produced. The Executive Officer of the Local Panchayat has not been examined. Relevant documents showing occupancy of the building in question have not been produced. Crl.R.P.No.1491 of 2001 6 The 2nd accused is sought to be made liable only on the basis of Ext.P4. Ext.P4, I note, is only a certificate which contains certain statement of facts made by the Executive Officer and the statement is only that the 2nd accused is the owner of a building. Nay, it is not even stated specifically that he is in possession of the building. The learned counsel for the petitioner contends that Ext.P4 cannot, in these circumstances, be pressed into service to establish the alleged nexus between the 2nd accused and the house in question. There is no explanation as to why Ext.P4 has not been proved through the maker of that statement. No crucial significance can be attached to Ext.P4 as it is clearly a piece of hearsay evidence reduced to writing. 2nd accused has not been arrested also by the Excise officials in the course of investigation. The accused had advanced a contention that they do not reside in the said house. In these circumstances, I find merit in the contention of the learned counsel for the petitioner that the 2nd accused's connection with the house in question has not been established at all. At any rate, there is crucial and significant absence of tangible data to establish a nexus between the 2nd accused and the house in question. The challenge against the verdict of guilty and conviction by the 2nd accused must, in these circumstances, Crl.R.P.No.1491 of 2001 7 succeed. 9. The learned counsel for the petitioner contends that if the connection of the 2nd accused to the house in question is not established, the mere presence of the 1st accused at the scene of the crime, cannot lead the court to any safe conclusion. In this context, the learned counsel for the petitioner relies on the absence of a specific statement in the oral evidence of PW1 that the 1st accused petitioner was available inside the house or in the kitchen. All that is stated is that she was standing in front of the house. Her conduct on seeing the excise party - admittedly she did not make any attempt to run away or hide herself, is relied on by the learned counsel for the petitioner in support of the contention that she has no nexus with the house in question. The 2nd accused's connection with the house having not been established, the mere fact that the 1st accused is the wife of the 2nd accused, cannot also be reckoned as a circumstance against the 1st accused, contends counsel. 10. The learned counsel for the petitioners goes further to contend that even if it is assumed that the contraband article was concealed in the kitchen of the house, in the absence of specific and satisfactory evidence to show that the 1st accused had Crl.R.P.No.1491 of 2001 8 knowledge of such concealment, the 1st accused had knowledge 0f should not have been made liable for constructive possession of such article which was not in her personal possession. I have been taken through the evidence of PW1 in detail. It is clear that there is no positive and specific evidence to infer that the 1st accused had knowledge of or was in conscious possession of the contraband article in possession. Except MO1, nothing to indicate an intention to illicitly manufacture liquor was available in the house to suggest conscious possession of the contraband article. The very case of the prosecution was only that 2nd accused was in conscious possession of MO1 and was indulging in objectionable activity. The 1st accused was obliged to face the prosecution only because she happened to be the wife of the 2nd accused. In these circumstances, the allegation of the prosecution that the 1st accused was in conscious possession of the concealed article may not be accepted, contends counsel. I find merit in that contention. 11. The above discussion lead me to the conclusion that it would certainly, at any rate safer, more just and prudent to concede the benefit of doubt that is aroused in the mind of the court on the basis of totality of circumstances to both the accused. Crl.R.P.No.1491 of 2001 9 12. In the result, a) This Crl.R.P is allowed. b) The impugned verdict of guilty, conviction and sentence imposed on the petitioners are set aside. They are found entitled to the benefit of doubt and are consequently found not guilty and acquitted of all the charges levelled against them. 13. Needless to say, the fine amount, if remitted already, shall be returned to the revision petitioners. (R.BASANT, JUDGE) jsr Crl.R.P.No.1491 of 2001 10 R.BASANT, J Crl.R.P.No.1491 of 2001 ORDER 14th DAY OF JULY 2009 Crl.R.P.No.1491 of 2001 11