IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 19TH MARCH, 2009 / 28TH PHALGUNA, 1930 CRL.A.No. 203 of 2003 (SC.251/2001 of the Addl.Sessions Court (Ad Hoc) II, Kasaragod) .................... APPELLANT/ACCUSED: -------------------------------- FRANCIS TELIS K. S/O. LADIN TELIS PANAJEKODY HOUSE, KOLANADU VILLAGE AND NOW RESIDING AT KOLIYOOR HOUSE, KOTTUNGUDDE, KOLIYOOR VILLAGE. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS/STATE AND COMPLAINANT: --------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2. STATION HOUSE OFFICER, MANJESHWAR POLICE STATION. R1 & R2 BY PUBLIC PROSECUTOR SRI.C.M.NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.No. 203 of 2003 A --------------------------------------------- Dated this the 19th day of March, 2009 J U D G M E N T The sole accused in S.C.No.251 of 2001 of the court of Additional Sessions Judge (Ad Hoc)-II, Kasaragod is the appellant. He challenges his conviction and sentence for the offence punishable under Section 55(a) of the Abkari Act. 2. The prosecution case is that at about 5.30 a.m. on 3.5.2000, the accused was found to be in possession of 649 bottles of Boss-whisky in 27 card board boxes, 375 ml. each and 1248 bottles in 26 cardboard boxes of 180 ml. each kept for unauthorised sale at Dygoli and thereby, the accused committed the offence punishable under Section 55(a) of the Abkari Act. Based upon the above allegation, Crime No.100/2000 of Manjeshwar Police Station was registered for the above offence. After investigation, a final report was filed before the Judicial First Class Magistrate Court, Kasaragod whereupon C.P.No.309 of 2000 was instituted and subsequently, the case was committed to the Sessions Court as per the proceedings of the committal court, from where the case was made over to the Assistant Sessions Court and Crl.A. NO.203 of 2003 :-2-: thereafter, the same was withdrawn and transferred to the trial court. When the accused appeared, a formal charge was framed after hearing the prosecution and the accused and when the charge was read over and explained to the accused, he pleaded not guilty. Consequently, Pws.1 to 7 were examined and Exts.P1 to P11 were marked from the side of the prosecution. The contraband articles were produced, identified and marked as MO-I and MO-II series. When the accused was questioned under Section 313 of the Cr.P.C., he denied all the incriminating circumstances which emerged during the prosecution evidence. The accused took the defence of total denial. After considering the entire evidence on record, the trial court found that the accused is guilty of the offences charged against him and accordingly, after hearing him, on the question of sentence, he was sentenced to undergo rigorous imprisonment for three years and also sentenced to pay a fine of Rs.1 lakh and default sentence is fixed as rigorous imprisonment for one year. It is the above finding of guilt, conviction and sentence, challenged in this appeal. 3. I have heard learned counsel Sri.T.G.Rajendran appearing for the appellant and the learned Public Prosecutor Crl.A. NO.203 of 2003 :-3-: Sri.C.M.Nazar. 4. Learned counsel for the appellant submits that even going by the prosecution case, the appellant cannot be linked with the alleged possession of contraband article and he cannot be convicted. It is pointed out that even according to the prosecution case, the accused was not arrested from the spot at the time of detection of the crime and the seizure of the contraband article. The only evidence that is available is that of the interested version of PW1 who says that he saw the accused running away from the jeep and Ext.P5 is the photocopy of the driving licence of the accused which is alleged to have been found from the jeep. The learned counsel pointed out that there is no evidence either documentary or oral to show that the property in question, where the jeep was alleged to have been parked from which the contraband articles were seized, was belonging to the accused. In the absence of evidence which is very crucial in the given facts and circumstances of the case, according to the learned counsel, the finding of the court below is liable to be set aside and the appellant/accused is entitled to get an order of acquittal. 5. Per contra, the learned Public Prosecutor submits Crl.A. NO.203 of 2003 :-4-: that the seizure was timely effected on the basis of the prior information received by PW1 and when PW1 accompanied by PW6 went to the spot, they saw the accused running away from the jeep and the identity of the accused was proved through PW1. In support of the above submission, the learned Public Prosecutor further submits that the presence of Ext.P5 which is seized by PW1 from the jeep in question further corroborates the case of the prosecution that the contraband articles were possessed by the accused himself. It is pointed out by the learned Public Prosecutor that Ext.P1 is a document prepared connected with the seizure of the contraband article and the said document contained the details of the seizure itself and even the absence of any endorsement to the effect that the accused was seen running away from the spot no way will affect the prosecution case. Learned Public Prosecutor further submits that the contraband article involved in the case is a huge quantity and it is also brought on record that the accused was previously involved in another case and therefore, the finding of the court below is correct and no interference is warranted. 6. I have carefully considered the contentions advanced by both the counsel for the appellant as well as the learned Public Crl.A. NO.203 of 2003 :-5-: Prosecutor and also perused the evidence and other materials on record. PW1 is the officer who detected the crime and when he was examined, he had deposed before the court in tune with the prosecution case. According to him, he had obtained prior information regarding the possession and unloading of Indian Made Foreign Liquor by the accused and based upon such information, he himself accompanied with PW6 were proceeding to the spot and consequently, the contraband articles were seized as per Ext.P1 mahazar. Ext.P2 F.I.R., Ext.P3 scene mahazar, Ext.P4 property list, Ext.P6 forwarding note, Ext.P7 report given to the Assistant Excise Commissioner etc. were proved through PW1. PW1 has categorically deposed that he saw the accused running away from the spot when himself and the party approached the jeep. He had also deposed regarding the details of the seizure and subsequent steps taken by him. Admittedly, the appellant/accused was not arrested from the spot. Regarding the seizure, there is no independent evidence at all. Though the prosecution has cited and examined Pws.2 and 3 to prove the seizure, they turned hostile. So, the only evidence available to prove the prosecution case is certain documents and also the deposition of Pws.1 and 6. Though I have repeatedly gone Crl.A. NO.203 of 2003 :-6-: through the depositions of Pws.1 and 6, in no where it is stated that they have prior acquaintance with the accused so as to identify the person who was running away from the spot was the accused. It is also pertinent to note that Ext.P1 mahazar is a document claimed to have prepared then and there on the seizure of the contraband article. But, there is no endorsement to the effect that the accused had run away from the jeep on seeing the raiding party. Merely because Ext.P5 was seen inside the jeep, it cannot be held that it was the accused who had driven the vehicle and he is responsible for the presence of the contraband article in the jeep. The prosecution has also failed to establish the fact that the jeep is belonging to the accused. If that be so, it cannot be held that it was the accused who was responsible for the presence of the contraband article and he was in possession of the same. It cannot be ruled out that the vehicle was used by some other person or some other driver for the purpose of transporting illegally the contraband articles. In the absence of any positive evidence to show that the accused was in exclusive possession and responsible for the contraband article, it cannot be said that the prosecution has succeeded in proving the guilt against the accused beyond reasonable doubt. Consequently, Crl.A. NO.203 of 2003 :-7-: the accused is entitled to get the benefit of doubt. 7. Another circumstance relied on by the prosecution to connect the appellant/accused with the seizure of the contraband articles is that the jeep bearing Registration No.KA-19-P-2346 from where the contraband articles were seized, was parked in front of a pumphouse bearing No as C. No.9993/MJR-LT V which is situated ten metres away from the northern side of a building which is under construction, in a place called Fygali in Kodalmogalu Village and the said property is belonging to the appellant/accused. Ext.P3 scene mahazar gives the description regarding the property where the jeep was seen. In Ext.P1 seizure mahazar, it is stated the the jeep bearing Reg.No. KA 19 P-2346 was seen faced to the eastern side near the Pump House bearing Regn.No. C. No.9993/MJR-LT V situated on the northern side of the house under construction by K.Franics Telix, S/o.Liziya Telix, the accused. In support of the above allegation and to prove the same, the prosecution has produced Ext.P8 certificate dated 17.10.2000. Ext.P8 is a possession certificate which is to the effect that Sri.Francis Telis, S/o,Ladhiri Telis of Koliyoor Village of Kasaragod Taluk had got 0.30 Ares (thirty cents) of land in R.S.No.57/1 Part of Koliyoor Village over which Crl.A. NO.203 of 2003 :-8-: he has got right as per sale Deed No.1346/93 dated 21.7.93. Admittedly, as per Ext.P8, the property mentioned therein is lying in Koliyoor Vilalge whereas the property mentioned in Exts.P1 and P3 is lying in Kodalmugalu Village. No evidence either documentary or oral is adduced by the prosecution to prove that the property where the above mentioned contraband articles were seized is belonging to the appellant/accused. In the absence of concrete evidence to prove the ownership of the property where the jeep was found, no penal liability can be fixed against the accused. Thus, on a consideration of the entire facts and circumstances and on analysis of the evidence on record, it can be seen that the prosecution has miserably failed to establish the link of the accused with the contraband articles alleged to have been seized by the prosecution. Even, according to the prosecution, they have no claim that the accused was arrested from the spot. So there is no evidence to prove that the accused was responsible for the contraband articles found in the jeep. Secondly, with respect to the property from where the jeep and the contraband articles were seized, there is no admissible evidence to show that the property was belonging to the accused. Since the provisions of the Abkari Act contemplates stringent Crl.A. NO.203 of 2003 :-9-: punishment, to convict and sentence a person on the basis of the allegations under the provisions of the Act, the evidence also must be clear, clinching and convincing. But, in the present case, the prosecution has miserably failed to establish the allegation against the appellant/accused beyond reasonable doubt and the appellant/accused is entitled to get the benefit of doubt and I do so. Therefore, the finding and order of conviction of the court below is liable to be set aside and accordingly the impugned judgment is set aside. In the result, this appeal is allowed setting aside the judgment dated 27.1.2003 in S.C.No.251 of 2001 of the Court of the Additional Sessions Judge, Kasaragod and he is acquitted of all the charges levelled against him and he is set at liberty. The bail bond, if any, executed by the accused will stand cancelled. V.K.Mohanan, Judge MBS/ Crl.A. NO.203 of 2003 :-10-: V.K.MOHANAN, JJ. -------------------------------------------- Crl.A.NO.203 OF 2003 -------------------------------------------- J U D G M E N T DATED: 19-3-2009 Crl.A. NO.203 of 2003 :-11-: