IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 6TH FEBRUARY 2009 / 17TH MAGHA 1930 Crl.Rev.Pet.No. 569 of 2000() ----------------------------- CRA.252/1998 of SESSIONS COURT, THRISSUR CC.380/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... REVN. PETITIONER(S): --------------------- 1. ANARKALY, W/O CHANDRASEKHARAN, VAZHAPPILLY HOUSE, EDAMUTTAM DESOM, VALAPPAD VILLAGE 2. CHANDRASEKHARAN, S/O KUMARAN, VAZHAPPILLY HOUSE, EDAMUTTAM DESOM, VALAPPAD VILLAGE BY ADV. SRI.RAJIT RESPONDENT(S): --------------- THE EXCISE INSPECTOR, VATANAPPILLY EXCISE RANGE, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. PUBLIC PROSECUTOR SRI.TEKCHAND THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.GIRI, J ------------------- Crl.R.P.569/2000 -------------------- Dated this the 6th day of February, 2009 ORDER Accused 1 and 3 in C.C.No.380/1996 on the files of the Judicial Magistrate of First Class, Chavakkad, had preferred this revision challenging their conviction and sentence, in the case of the first petitioner under Section 58 and in the case of the second petitioner under Section 64A of the Abkari Act. Both sides submit that the second petitioner passed away during the pendency of this revision. In the result, all that is required to be done in relation to the second petitioner is to declare that the proceedings are abated as regards the second petitioner. 2. The case of the prosecution is that the search party of Excise officials including PWs1 and 2 had, on receipt of information that A2, the son of A1 and A3 was indulging in illicit sale of arrack, proceeded to the house of A3. They had found A1 inside the house and had proceeded to conduct a search of the house. Crl.R.P.569/2000 2 They recovered 10 plastic covers of arrack which were immediately seized. They then, proceeded to search a pond which was situated near the building and took into custody another 280 packets of arrack containing 100 ml of liquor each. 10 packets seized from the kitchen and 280 packets seized from the pond were taken into custody under Ext.P1 mahazar. Going by the search list, the same was forwarded to the Magistrate's Court only on 14.8.1996. Liquor from two packets seized from the kitchen was poured into a bottle of 375 ml measure and then sent for chemical analysis. Ext.P4 report of the chemical analyst reveals that it contained alchohol. In the meanwhile, on the basis of the information received, though they were not available on the spot, A2, son of A1 and A3 and A3, the owner of the house, were also arrayed as accused along with A1 as mentioned above. 3. Prosecution examined PWs1 to 3, PWs1 and 2 being Excise Inspectors forming part of the search party and PW3 being a witness to P1 seizure mahazar. The Crl.R.P.569/2000 3 accused examined DW1, the neighbour and DW2, the third accused himself. 4. Trial Court went on to find that the recovery of 10 packets from within the kitchen and 280 packets from the pond situated adjacent to the building should be taken to have been proved and accordingly, the first accused was found guilty under Section 55(a) of the Abkari Act. A3 being the owner of the house, was found guilty of the offence under Section 64A of the Act and A2 was acquitted. 5. In appeal, the appellate Court accepted the case of the accused that the recovery of 280 packets from the pond situated nearby, cannot be held against the accused as the pond was situated in a property belonging to a neighbour. The lower appellate Court held that under Section 55(a) of the Act, possession is made punishable. But possession simplicitor cannot be held to be punishable under Section 55(a). The terms import, Crl.R.P.569/2000 4 export, transport, transit, as occurring in the Section is made punishable under Section 55(a). Conviction of the first accused was therefore, altered from Section 55(a) to 58 of the Abkari Act. It may be noted herein that at the relevant time, the punishment for an offence under Section 58(a) could have extended upto one year with a maximum fine of Rs.15,000/-. The conviction of the third accused under Section 64A of the Act and the sentence imposed on him was confirmed. The sentence of the first petitioner was reduced to three months’ simple imprisonment with a fine of Rs.25,000/- which was the minimum prescribed. Learned counsel for the petitioners submits that both the accused had deposited the fine amount. 6. I heard Mr.Rajith, learned counsel for the petitioners and learned Public Prosecutor. 7. As stated at the outset, what is relevant is only the case against the first accused inasmuch as the third Crl.R.P.569/2000 5 accused, the second petitioner, passed away during the pendency of the revision petition. 8. PWs1 and 2, the Excise Inspectors, no doubt spoke about the search conducted on 1.8.1996. There are certain aspects in the evidence of these two witnesses which, in my view, is not completely reconcilable with the case of the prosecution. Firstly, it has been admitted by both PWs1 and 2 that the search party went to the house of A3 on receiving information that A2 was indulging in the sale of illicit arrack. But it is admitted that they did not go in a departmental vehicle. They had gone in a vehicle supplied by an Abkari contractor. It is not clear as to why the Excise officials had proceeded to search the house, on receiving information of illicit sale of arrack, presumably from an independent source, in a vehicle supplied by an Abkari contractor. Departmental vehicles were then available and it is not clear as to why the abkari contractor supplied vehicle to the Excise officials. It was specifically suggested, in the course of Crl.R.P.569/2000 6 cross-examination of PWs1 and 2 that complaints were made earlier regarding illicit sale of arrack conducted in the property belonging to one Majeed and the pond, from which 280 packets of illicit arrack were recovered, is situated in the property of Majeed. It is not a matter of insignificance that according to the prosecution, packets stated to have been recovered from the kitchen of the house of A3, and those stated to have been recovered from the pond situated in the adjacent property, bear the same insignia. 9. Secondly, the search is stated to have been conducted on 1.8.1996. No attempt has been made to give any explanation for the delay of 14 days from 1.8.1996 to 14.8.1996, on which date, the search list had been forwarded to the Magistrate’s Court. 10. Thirdly, the evidence of PW3 and DW1 ought not to have been brushed aside. No doubt PW3 was declared hostile, but his testimony was not liable to be eschewed Crl.R.P.569/2000 7 from consideration merely because he was declared hostile. It is noteworthy that PW3 had not denied the fact that he was a witness to the mahazar. In fact he accepted the same. But what he mentioned was that the recovery of the contraband was effected from the pond situated in the adjacent property. He denied recovery from within the kitchen. 11. This version is consistent with the version given by DW1, who also testified to be a witness to the recovery effected from the pond situated nearby the building. It is the prosecution which tried to link the recovery effected from the nearby pond and the recovery effected from within the kitchen. I find it difficult to appreciate the total lack of any effort on the part of the Excise officials to pursue the investigation resultant upon the recovery of 280 packets of arrack from the pond situated in the property, which obviously did not belong to the third accused. Once, on investigation it came out that the pond is not situated in the property of the accused, Crl.R.P.569/2000 8 then an attempt should have been made to find out who else is responsible for the same. That has not been done. 12. I find force in the submission made by the learned counsel for the petitioners that in so far as the first petitioner is concerned, she has been found guilty of the offence punishable under Section 58 of the Abkari Act, solely on the premise that she is the lady of the house and recovery was effected from within the house. The appellate Court had also accepted the case of the first petitioner that the first petitioner could not be held guilty of the offence under Section 55(a) of the Act and according to the appellate Court, the possession that can be attributed to the first petitioner is possession simplicitor and not possession as contemplated by Section 55(a) of the Act. I find it difficult to agree with the said finding of the lower appellate Court. It has come out in evidence that A1 and A3 have six children and A2 was one among them. The search party came to the house on receiving information that A2 was indulging Crl.R.P.569/2000 9 in the sale of illicit arrack. A2 was acquitted by the trial Court in the absence of any evidence to link him with the alleged recovery effected from within the house. His acquittal was not appealed against. Obviously there are other inmates in the house. If the recovery from within the house is accepted as it is, and for the reason mentioned above, I have serious doubts as to whether the recovery can be accepted. Third accused is found guilty of the offence under Section 64A. It is not necessary to pursue this line of enquiry, in circumstances where the third accused is no longer alive. But, I am of the view that in the circumstances, the alleged recovery from within the kitchen, by itself, was inadequate to warrant a conviction of the first petitioner, the first accused, under Section 58 of the Abkari Act. 13. For all these reasons, the Criminal Revision Petition is allowed. Conviction and sentence of the first accused is set aside. The fine amount deposited by her shall be refunded to her within three months from the date of Crl.R.P.569/2000 10 receipt of a copy of this order. Proceedings regarding the second petitioner, the third accused, is declared to be abated. Bail bond executed by the first accused shall stand cancelled. V.GIRI, Judge mrcs