IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 2ND JULY 2008 / 11TH ASHADHA 1930 CRL.A.No. 1061 of 2008() ------------------------ SC.608/2006 of SPL. COURT (NDPS ACT CASES), THODUPUZHA CP.71/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT - I, IDUKKI .................... APPELLANT: APPELLANTS: ---------------------- 1. JOSEPH, C.NO.2467, CENTRAL PRISON, THIRUVANANTHAPURAM. 2. RAJU, C.NO.2468, CENTRAL PRISON, THIRUVANANTHAPURAM. 3. WILSON, C.NO.2469, CENTRAL PRISON, THIRUVANANTHAPURAM. BY ADV. N.K.SUBRAMANIAN[STATE BRIEF] RESPONDENTS: ------------- STATE OF KERALA, REPRESENTED BY A PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SRI.AMJED ALI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.A.No.1061 of 2008 ---------------------------------------- Dated this the 2nd day of July 2008 JUDGMENT The appellants three in number in this appeal assail the verdict of guilty, conviction and sentence imposed on them in a prosecution under Section 8(2) of the Kerala Abkari Act. They have been found guilty, convicted and sentenced to undergo R.I for a period of two years and to pay a fine of Rs.1,00,000/- each and in default they have been sentenced to undergo S.I for six months each. 2. The crux of the allegations against the appellants is that they were found engaged in the activity of manufacturing arrack by illicit distillation in the house of the first accused when a police party led by PW1 reached the house on the basis of prior discreet information received by them at the police station at 9 p.m. The police party reached the scene of the crime at 10.45 p.m and conducted the raid, it is alleged. MOs 1 to 9 were seized along with three litres of arrack and negligible quantity of wash. The process of distillation was allegedly going on when PW1 reached the house of the first accused and arrested Crl.A.No.1061/08 2 Accused 1 to 3. 3. Investigation commenced with registration of Ext.P6 F.I.R on the basis of Ext.P1 search list prepared by PW1 under which he effected seizure of contraband articles from the house of the first accused. Cognizance was taken on the basis of final report submitted by PW5. PW5 had only verified the investigation conducted by PW1 who in turn had detected the offence himself. PW5 only filed the chargesheet after verification of charge. 4. Cognizance was taken by the learned Magistrate. The accused appeared before the learned Magistrate. Accused were committed before court of Session. Accused denied the offences alleged against them whereupon the prosecution was directed to adduce evidence in support of its case. The prosecution examined PWs 1 to 5 and proved Exts.P1 to 10. MOs 1 to 9 were also marked. PW1 is the Sub Inspector of Police who detected the crime. PW2 is a police constable who accompanied PW1. PW3 is alleged to be an independent witness who was present when the seizure took place. He turned completely hostile to the prosecution. PW4 is the Panchayat Secretary who reported that Crl.A.No.1061/08 3 the house in question belongs to the first accused. PW5 as stated earlier is the officer who completed the investigation and filed the chargesheet. Ext.P1 is the search list prepared by PW1. Ext.P2 series are paper slips affixed on the bottles which contain the signatures of PWs 1 and 2. In Ext.P1 as well as in Ext.P2 series we find the signature of CW2, an allegedly independent witness who was present at the time of seizure and who was not examined before court. Ext.P3 series are arrest memos prepared at the scene of the crime by PW1 when he allegedly arrested Accused 1 to 3. In Ext.P3 series two Shajies are shown as independent witnesses present at the time of arrest. Ext.P4 series are inspection memos. Ext.P5 is the search memo which was allegedly prepared and sent to court before the search was actually undertaken by PW1. Ext.P6 is the F.I.R registered and Ext.P7 is the list of property sent to court. Ext.P9 is the certificate issued by PW4 to show the ownership of the house of the first accused from which the offence was detected. Ext.P8 is the forwarding note and Ext.P10 the chemical examiner's report. All witnesses except PW3 supported the prosecution's case. Crl.A.No.1061/08 4 5. The accused in the course of cross-examination of prosecution witnesses as also in the course of 313 examination took a specific and definite stand that there was animosity between one Peethambaran, CW2 who happens to be a neighbour of the first accused. There were bitter disputes regarding property between these two neighbours. There was an incident in which accused 1 to 3 had deterred CW2 in his attempt to act against the proprietary interests of the first accused. All of them were called to the police station. At the police station these false allegations were staked against the accused on 08/02/2005. This is the specific and definite stand taken by accused 1 to 3 through out the trial and when examined under Section 313 Cr.P.C. In fact we find interesting admissions made by PW1 that there were such disputes and CW2 had complained about the first accused before the police. No defence evidence was adduced by the accused. 6. The learned Judge on an anxious consideration of all the relevant inputs came to the conclusion that the prosecution has succeeded in establishing all ingredients of the offences punishable under Section 8(1) of the Kerala Abkari Act. The Crl.A.No.1061/08 5 court found that it was safe to place reliance on the oral evidence of PWs 1 and 2. Accordingly, the learned Judge proceeded to pass the impugned judgment. 7. The appellants have preferred this appeal through prison authorities. They have not been able to engage a counsel for themselves. Adv.N.K.Subramanian has rendered legal aid to the accused and has assisted this court as State Brief Counsel. I must note with appreciation that the counsel have prepared the case thoroughly before he advanced his arguments. 8. The learned counsel for the appellants assails the verdict of guilty, conviction and sentence on various grounds. First of all it is contended that in the peculiar facts and circumstances of this case an attitude with doubt, reservation and caution was necessary while approaching the evidence of PWs 1 and 2 who alone supported the case of the prosecution about the alleged raid and seizure of contraband articles from the house of the first accused. I do, first of all, take note of the fact that the appellants had taken a very specific and definite stand probabilised by the answers extracted from PWs 1 and 2 that there was bitter animosity and disputes between CW2, one Crl.A.No.1061/08 6 Peethambaran, a neighbour of the first accused and accused 1 to 3 and that the police is succumbing to the pressures and influence of the said CW2 to foist this false case on them. I do agree with the learned counsel for the appellants that in the peculiar facts and circumstances of this case such an approach with caution, reservation and doubt is certainly required to the evidence of PWs 1 and 2. 9. The learned counsel points out that while PW1 stated that the seizure was from a shed; the materials available otherwise indicates that the seizure was from the kitchen in the house of the first accused which is separated into rooms. Ext.P1 search list also does not support the theory that it was a shed. 10. The learned counsel then submits that even admittedly PW1 received specific and definite information before they left the police station in the departmental vehicle. But search memo was not sent to the court on that night as per the evidence of PW1 and it was sent only on the next morning whereas the contents of Ext.P1 search list would indicate that the search memo was sent earlier to the court. These circumstances may be innocuous in the facts of some other case; Crl.A.No.1061/08 7 but in the totality of circumstances available in this case, I agree with the learned counsel for the appellants that even these circumstance must be taken note of. 11. PW1 must have known that he was going to the scene of the crime to conduct a house search in an attempt to recover contraband article if any. Surprisingly he did not take any witnesses along with him when he went on his mission to conduct a search in the house of the first accused and recovering contraband articles. But the evidence of PWs 1 and 2 would show that CW2 was available at the spot about 1 Km away from the house of the first accused where the police jeep was stopped. From there CW2 allegedly accompanied the police party to lead them to the house of the first accused. The house of CW2, the evidence clearly indicates, is adjacent to the house of the first accused. The presence of CW2 at the spot where the vehicle was stopped to welcome the police and lead them to the house of the first accused must generate serious doubts about the role of CW2 in foisting this false case on accused 1 to 3, contends the learned counsel. I find the contention to be of substance. Crl.A.No.1061/08 8 12. The learned counsel heavily relies on the unambiguous mandate of Section 36 of the Kerala Abkari Act and the specific stipulations in the proviso to Section 36 which demands that atleast two witnesses who should not be officials must be called to witness the search. Significantly in this case we have only CW2 who is described as an independent witness to witness the search and seizure. That CW2 has not been examined before court also. The learned counsel rightly points out that the non-examination of CW2 must generate serious doubts in the mind of the court. It cannot be reckoned as an innocuous omission. Merely because non-bailable warrants were issued twice against CW2 as seen from the order sheet, it cannot be held that the prosecution had sufficient reasons to dispense with the examination of CW2. In the circumstances of this case where the accused had taken a very consistent and specific stand that it was the influence wielded by CW2 which gave birth to this false prosecution against them, the fact that only CW2 was shown as an independent witness to attest the seizure mahazer and that he was not examined without even showing sufficient cause must certainly loom large in the facts and circumstances Crl.A.No.1061/08 9 of this case. 13. The learned counsel points out that it is not as though independent witnesses were not available at the scene. If we go by the prosecution version, two Shajies who have affixed their signatures in the arrest memos Ext.P3 series were admittedly available at the scene of the crime when the offence was detected and the accused was arrested. PW3/CW4 is held out as an independent witness who happened to be present at the scene of the crime. Surprisingly these two Shajies - witnesses in Ext.P3 series arrest memos and PW3/CW4 are not requested by the prosecution to be witnesses at the time of search and seizure even though they were physically present. The learned counsel for the appellants contends that the police had not even come to the house of the first accused and all the documents were manipulated at the police station. PW3 and the said two Shajies, attestors in Ext.P3 series arrest memos, if they were actually available at the scene of the crime, it is unlikely nay impossible, that the prosecution would not have enlisted their service to figure as attestors to the search list Ext.P1 in the light of the mandate in Section 36 Cr.P.C that at least two independent Crl.A.No.1061/08 10 witnesses must be called to witness the search and seizure. 13. The learned counsel for the appellants in this context wants this court to note that the investigation was conducted by PW1, the detecting officer himself. That by itself may not persuade this court to throw overboard the case of the prosecution in an omnibus manner; but along with the other circumstances and in the totality of suspicious circumstances that have been shown to exist in this case, that circumstance must also tilt the balance ultimately in favour of the appellants, contends the learned counsel for the appellants. 14. I have considered all the relevant inputs. I have no hesitation to agree that in the totality of circumstances that have been brought out in this case which have already discussed above, it would have been safer, more prudent and certainly more correct and just to concede to the appellants/accused the benefit of doubt which is aroused in the mind of the court on the basis of the totality of unsatisfactory circumstances. I do unhesitatingly concede to the appellants the benefit of such doubt that has been aroused in my mind. Crl.A.No.1061/08 11 15. In the result, a) This appeal is allowed. b) The impugned verdict of guilty, conviction and sentence imposed on the appellants under Section 8 of the Kerala Abkari Act are set aside. c) The appellants are found not guilty and acquitted of the charges levelled against them. d) The appellants are set at liberty. They shall be released from prison forthwith if their continued detention is not necessary in connection with any other cases. Communicate this judgment to the court below forthwith. The court below shall issue revised warrant of commitment. Communicate the order to the prison authorities and to the appellants through the prison authorities. (R.BASANT, JUDGE) jsr Crl.A.No.1061/08 12 R.BASANT, J CRL.A.No.1061 OF 2008 JUDGMENT 02/07/2008