IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 25TH AUGUST 2011 / 3RD BHADRA 1933 CRL.A.No. 2136 of 2003() ------------------------------------- SC.88/2000 of ADDITIONAL SESSIONS, FAST TRACK COURT-II, ALAPPUZHA .................... APPELLANT/ACCUSED: ----------------------------------- BHADRAN, KOYIKKALETH, KIZHAKKATHIL, KANNANAKUZHI MURI, THAMARAKULAM VILLAGE, MAVELIKKARA. BY ADV. SRI.K.HARILAL RESPONDENT/COMPLAINANT: --------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.ALEX M.THOMBRA. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 25/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs N.K.BALAKRISHNAN, J. -------------------------------- Crl.A.No.2136 of 2003 --------------------------------- Dated this the 25th day of August 2011 J U D G M E N T The appellant who was convicted by Adl. Sessions judge, Fast Track-II, Alappuzha for an offence punishable under Sec.55(g) of Abkari Act is the appellant. He was sentenced to undergo R.I. for one year and to pay Rs.1 lakh as fine. 2. The case of the prosecution is that PW1 the Preventive Officer and other officials were on patrol duty on 29.10.1997, on getting reliable information that wash was kept in Koyikkaleth house, after preparing search memo and sending it to the court they proceeded to the house of the accused. The accused was present in the house. There were four rooms in that house. In the western room a black plastic can measuring about 35 litres containing wash was seen. 600Ml of wash was taken in a 700ml bottle as Crl.A.No.2136 of 2003 -: 2 :- sample. It was packed, sealed and labelled. The sample as well as the plastic can containing the remaining wash were seized. The accused was arrested. He was produced before the court on the next date. A seizure mahazar was prepared then and there. After conducting investigation charge sheet was laid by PW7. The accused pleaded not guilty. 3. PWs.1 to 7 were examined and Exts.P1 to P3 were marked. MO1 was also identified and marked. The accused contended that he is totally innocent in the matter. One witness was examined on the side of the defence and Ext.D1 was marked. 4. The learned Addl. Sessions Judge analysed the evidence and found that the accused was in possession of wash mentioned above and so he was found guilty, convicted and sentenced as mentioned earlier. 5. Sri.Harilal, the learned counsel appearing for the appellant would submit that there is no legal evidence to hold that the accused was in possession of wash as alleged Crl.A.No.2136 of 2003 -: 3 :- by the prosecution. The learned counsel would draw the attention of the court to the evidence given by DW1 and Ext.D1 which would show that the owner of the house by name Koyikkaleth house is Gangadharan. The copy of the assessment register would prove that the owner of the house is Gangadharan mentioned above. It is argued with vehimence that though the Investigating Officer says that he had conducted investigation in the matter practically no investigation was conducted by him as to who was the owner of the house and how many persons were residing in the house at the relevant time. Though PW1 claims to have seen the ration card issued in respect of that house and then he was convinced of the fact that accused was the owner of the house, that evidence stands stultified by the evidence given by DW1 and Ext.D1. It is further argued that the gravity of the offence should have been borne in mind by the investigating agency to conduct proper investigation to prove that the accused was in conscious possession of the contraband article. There is no evidence Crl.A.No.2136 of 2003 -: 4 :- to show whether other inmates of that house were questioned by PW6 and none of them was cited or examined by the prosecution in order to prove that the accused was in conscious possession of the contraband articles, the learned counsel submits. PW6 should have questioned other inmates to say that MO1 was not kept in that house by any of them. The learned counsel further submits that even if those witnesses may not support the prosecution still the investigating agency cannot shirk its duty and responsibility in questioning those witnesses. It would appear that PW6 did not conduct any investigation. He admits that he did not venture to examine the ration card or its copy to find out who were the inmates of that house nor did he verify the register maintained by the Panchayath showing the ownership of the building. 6. The learned Prosecutor would submit that Ext.P1 seizure mahazar gives a detailed description of the acts done by PW1 in particular that he had verified the ration card in respect of that house. The learned counsel for the Crl.A.No.2136 of 2003 -: 5 :- accused would submit that in Ext.P1 Seizure Mahazar, it was mentioned that the accused was arrested. There is no document to show that he was in fact arrested from that house at the relevant time. Learned counsel pointed out that had he been arrested certainly, following the D.K. Basu's case and as directed by the Hon'ble Supreme Court, arrest memo and inspection memo should have been prepared. But no such documents were not produced at all by the prosecution. Hence according to the learned counsel, the accused was not arrested at all on that day. It is argued that since the directions issued by the Hon'ble Supreme Court are mandatory, unless there is an explanation as to why the arrest memo was not produced, a reasonable inference should be drawn that the accused was not arrested on that day, the learned counsel for the appellant submits. 7. The learned Public Prosecutor would submit that the fact that the accused was arrested as mentioned in Ext.P1 was not effectively challenged by he defence. The Crl.A.No.2136 of 2003 -: 6 :- Learned counsel for the appellant would submit that when the relevant document was not produced by the prosecution, there was no necessity for the accused to put questions to invite answers. Had the arrest Memo been produced it could have actually been used by the prosecution as a document to support the arrest of the accused at the time and place of the incident. That was not done. The investigating officer also did not carefully verify those facts. According to the learned counsel, if there is no legal evidence to prove the arrest of the accused from that house, it can be held that the prosecution has failed to prove the conscious possession of the contraband articles which is required to fasten the criminal liability on the appellant. It is true that the samples examined by the chemical examiner was found to contain traces of Ethyl Alcohol and so the fact that MO1 content 'wash' intended for manufacturing illicit arrack could be proved. 8. From the evidence on record, it can be found that, the accused might be the person responsible for keeping Crl.A.No.2136 of 2003 -: 7 :- wash in that house, but there are other inmates in that house. The head of the family was Gangadharan, the father of the accused. To find the accused guilty, it must be proved that the accused was keeping possession of the wash as mentioned above. There is a long legal distance to travel from 'might be true' to 'must be true'. If so the accused has to be given the benefit of reasonable doubt. As such the conviction and sentence passed by the Additional Sessions Court, Fast Track II, Alappuzha are liable to be set aside. In the result, this Criminal Appeal is allowed. The conviction and sentence passed by the Additional Sessions Court, Fast Track II, Alappuzha is set aside. He is acquitted of the offence with which he stood charged. He is set at liberty. The bail bond executed by him will stand discharged. N.K.BALAKRISHNAN, JUDGE. Jvt