IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 7TH FEBRUARY 2008 / 18TH MAGHA 1929 CRL.A.No.1992 of 2003 (D) -------------------------------- SC.411/2001 of ADDL. SESSIONS COURT (ADHOC)-I, THODUPUZHA .................... APPELLANT: ACCUSED NO.2: --------------------------------- JOY @ VARKEY, AGED 23 YEARS, S/O. THOMAS, NIRAVATHU PARAMBIL HOUSE, KOZHIMALA, AYYAPPANCOIL, IDUKKI DISTRICT. BY ADV. SRI.C.C.THOMAS (SR.) RESPONDENT/COMPLAINANT: ----------------------------------- STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, PEERMADU, IDUKKI DISTRICT, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.THOMAS JOHN AMBOOKAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.1992 of 2003 ------------------------------------------------ Dated this the 7th day of February, 2008 JUDGMENT The second accused in S.C.411/01 of Sessions Division, Thodupuzha is the appellant. He challenges in this appeal the conviction and sentence passed against him under Section 55(a) of the Abkari Act by the Additional Sessions Judge (Adhoc)-I, Thodupuzha vide judgment dt.15/11/03 in S.C.411/01 aforesaid. On conviction, he has been sentenced to undergo rigorous imprison- ment for a term of three months and to pay a fine of Rs.1 lakh and in default to undergo simple imprisonment for three months. 2. The charge against the appellant is that at about 3.15 a.m. on 16/10/99 on the road in front of hotel Greenland at the place Chappathu he was found in possession of 640 bottles (180 ml. and 375 ml.) of brandy in Crl. Appeal No.1992 of 2003 -2- jeep bearing registration No.KL-6A-1506. The detection of the case is stated to be by PW1 on information furnished by people of the locality that a jeep with IMFL found transported therein is intercepted by the public. According to PW1, he accompanied with police party consisting of CWs.8 to 10 proceeded to the scene of occurrence and took the appellant who was present there into custody; effected seizure of the material objects and coming back to the police station, he registered case against the driver of the jeep who could be identified at site and against the present appellant drawing up Ext.P1 FIR in that behalf. Crime No.231/99 so registered at the Upputhara Police Station was investigated into by PW10 the Circle Inspector of Police and on completion of the investigation Final Report in the case was laid by PW11/the successor in office of PW10. Crl. Appeal No.1992 of 2003 -3- The Final Report so filed was registered as C.P.69/2000 on the file of the Judicial First Class Magistrate's Court, Peermade. After complying with all legal formalities, the learned Magistrate committed the case to the Sessions Division, Thodupuzha from where the case was made over initially to the Assistant Sessions Court, Kattappana and later was withdrawn and made over to the Additional Sessions Court (Adhoc)-I, Thodupuzha for trial and disposal. 3. On appearance of the appellant/A2 as also A1 in the court below pursuant to receipt of summons, they engaged their own lawyer to defend the case on their behalf. Thereafter, preliminary arguments were heard; charge was framed against the appellant and the first accused in the case for offence under Section 55(a) of the Abkari Act; was read over and explained to them and they were questioned. Crl. Appeal No.1992 of 2003 -4- Thereupon, the appellant as also A1 in the case pleaded not guilty and consequently, a trial of the case was conducted by the court below. 4. Prosecution examined PWs.1 to 11; got marked Exts.P1 to P4 and got identified MO1 series. On the prosecution closing their evidence, both the accused in the case were questioned under Section 313 Cr.P.C. Thereupon, they generally denied all incri- minating circumstances appearing in evidence against them and maintained that they are innocent. According to the appellant/A2 he was returning after going to the house of one sakhavu Kesavan who passed away and on return he saw a jeep parked on the road and when he went towards the jeep and asked the persons sitting therein as to whether it is jeep proceeding to the place “Swaraj” they replied in the negative and however, on seeing the Crl. Appeal No.1992 of 2003 -5- police approaching them the persons who were sitting in the jeep took to their heels and the police took him into custody and have foisted this case against him. However, he did not adduce any evidence in defence. 5. The court below considered the case in the light of the evidence adduced as aforesaid; found that A1 in the case is not guilty and acquitted him but found the appellant/A2 guilty of offence punishable under Section 55(a) of the Abkari Act; convict him thereunder and sentenced him as already stated. Hence, this appeal by the aggrieved second accused. 6. Heard counsel for the appellant and the public prosecutor for the respondent/ State. 7. It is vehemently contended before me by the learned counsel for the appellant that there is absolutely no evidence in the case Crl. Appeal No.1992 of 2003 -6- regarding arrest of the appellant as no arrest memo is prepared and however, there is no evidence implicating the appellant in the commission of any crime, but still the court below has entered into a conviction of the appellant finding him guilty and has imposed a very severe punishment on him. He has taken me through the entire evidence adduced in the case being a court of first appeal to contend that there is absolutely no evidence implicating the appellant in an offence punishable under Section 55(a) of the Abkari Act except that there are MO1 series as material objects before court which are several bottles of IMFL. 8. PW1 is the detecting officer in this case. According to him, he got information at 2.15 a.m on 16/10/99 at the Upputhara Police Station that jeep bearing registration No.KL- 6A-1506 which was transporting brandy is Crl. Appeal No.1992 of 2003 -7- intercepted by the local people at Chappathu in front of the Greenland hotel; that thereupon, he along with police party reached the place of occurrence at 3.15 a.m. and saw a jeep that had been intercepted that he found appellant/A2 sitting in front seat of the jeep and there were fourteen hardboard boxes within the jeep which contained altogether 640 bottles of IMFL which are MO1 series of different varieties and bottled in bottles of 180 ml. and 375 ml. He has further deposed that from each variety of IMFL he has taken two bottles each as sample in the presence of witness preparing Ext.P2 seizure mahazar in that behalf and effected arrest of the appellant and with the jeep the material objects therein and the appellant, he came over to the Police Station and registered the case as Crime NO.231/99 of Upputhara Police Station drawing up Ext.P1 FIR in that behalf. Crl. Appeal No.1992 of 2003 -8- He also swears that he has produced the material objects before court describing them in Ext.P3 property list on 30/10/99 keeping it in his safe custody till then and produced the appellant before court the next day. In cross examination, he has stated that when he reached the scene of occurrence, the persons who had intercepted the jeep were present there and that however, no record in relation to the MO1 series was found with the appellant. He also stated that the driver of the jeep had taken to his heels as intimated to him by the people who intercepted the jeep. When he was asked as to whether Sakhavu Kesavan belonging to Marxist Communist Party residing at Pookkalam had passed away on that day and as to whether the witnesses cited by him are persons who were coming on receipt of information regarding the death and as to whether appellant is one of them hailing from Crl. Appeal No.1992 of 2003 -9- Kozhimalakkara, he has pleaded ignorance though he asserted that the appellant was residing in Munnar town. However, he admitted that he is not aware if the appellant was returning after going to the house of deceased Kesavan. 9. PWs.2 and 3 are attestors to Ext.P2 Seizure Mahazar. Both of them have turned hostile. According to them, they were signing in Ext.P2 at the Police Station on demand made by the police. PW2 has however, stated that himself and others were returning from the house of Sakhavu Kesavan who passed away on that day. Both PWs.2 and 3 have however, denied of their having intercepted any jeep transporting liquor. 10. PWs.4 to 8 are the witnesses examined by the prosecution to establish the prosecution case of jeep transporting liquor having been intercepted by the people of the Crl. Appeal No.1992 of 2003 -10- locality as deposed by PW1. All of them have turned hostile and the prosecution has not got an iota of evidence from any of those witnesses in support of the prosecution case. Strangely enough, none from the police party accompanying PW1 was examined as witness in the case though it is submitted that they were cited as charge witnesses 8 to 10. 11. PW9 is the chemical analyst who has submitted Ext.P4 Chemical Analysis Report and his testimony is not assailed. PW10 is the investigating officer and his evidence shows that absolutely no investigation worth mentioning was conducted by him. PW11 is the successor in office of PW10. According to him, he has only effected arrest of A1 who appeared at the police station and that he was enlarging A1 on bail as order granting bail was already there. In cross examination he has further stated that he has not taken into Crl. Appeal No.1992 of 2003 -11- banthavast any record in relation to the jeep which is stated to have been intercepted by the local people on seeing liquor being transported therein. Despite question from court as to whether he made any enquiries with respect to the records of the jeep his answer was only that those were not recovered. Thus, there is absolutely no iota of evidence in the case to enable a conviction of the appellant being entered into accepting the prosecution case as genuine. Court below has wrongly entered into a finding that the appellant is guilty of offence punishable under Section 55 (a) of the Abkari Act. The said finding is untenable and this appeal therefore, deserves to be allowed reversing the conviction and sentence passed by the court below against the appellant. 12. In the result, allowing this criminal appeal, I set aside the conviction and Crl. Appeal No.1992 of 2003 -12- sentence passed by the court below against the appellant and acquit him of the charge for offence punishable under Section 55(a) of the Abkari Act. His bail bond is cancelled. It is submitted by counsel for the appellant that an amount of Rs.15,000/- was deposited in the court below as ordered by this court as a condition for suspension of the sentence when this appeal was filed. If any such amount is deposited, the appellant shall be entitled to withdraw the said amount on application made in that behalf in the court below. K.P.BALACHANDRAN, JUDGE kns/-