IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 10TH APRIL 2008 / 21ST CHAITHRA 1930 CRL.A.No.1404 of 2007(A) ------------------------------- SC.1881/2001 of ADDL.SESSIONS COURT-TRIAL OF ABKARI ACT CASES, NEYYATTINKARA. CP.45/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEYYATTINKARA. .................... APPELLANT: -------------- MOHANAN,C.NO.1877, CENTRAL PRISON, TRIVANDRUM. BY ADV. SMT.P.MAYA (STATE BRIEF) RESPONDENT: ---------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.THOMAS JOHN AMBOOKKAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.1404 of 2007 ------------------------------------------------ Dated this the 10th day of April, 2008 JUDGMENT Convict No.1877, Mohanan of Central Prison, Thiruvananthapuram is the appellant. He stood indicted for offence under Section 58 of the Abkari Act for having been found at about 8.00 p.m on 03/02/99 possessing MO1 black jerry can of five litre capacity filled with arrack at the Channel road leading from Vatyakkala junction to Ponamkodu in Venpakal desom, Athiyannoor Village in Neyyattinkara taluk by PW3 and excise party accompanying him. On the basis of seizure effected by PW3 along with Excise party consisting of PWs.2 and 7, he submitted before PW4 report in that behalf along with seizure mahazar, arrest memo etc. and on the basis thereof PW4 registered the case drawing up Ext.P6 crime and occurrence report in that behalf. PW5 conducted investigation in the case and on Crl. Appeal No.1404 of 2007 -2- completion of the investigation, he submitted Final Report in the case before the Judicial First Class Magistrate's Court-I, Neyyattinkara. The learned Magistrate vide proceedings in C.P.45/01 committed the case to the Sessions Division, Thiruvananthapuram from where the case was made over to the Additional Sessions Court for trial of Abkari Act cases at Neyyattinkara. 2. The learned Additional Sessions Judge heard the counsel for the appellant and the Public Prosecutor and framed charge against the appellant for offence under Section 58 of the Abkari Act; read over and explained it to the appellant and questioned him. Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted. On the side of the prosecution PWs.1 to 7 were examined and Exts.P1 to P10 were marked and MO1 is got identified. Crl. Appeal No.1404 of 2007 -3- 3. On the prosecution, closing its evidence, the appellant was questioned by the court below under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. However, he did not adduce any evidence in defence. The court below considered the case in the light of the evidence adduced as aforesaid; found the appellant/accused guilty of offence under Section 58 of the Abkari Act; convicted him thereunder and sentenced him to undergo rigorous imprisonment for a term of two years and to pay a fine of Rs.1 lakh and in default to undergo imprisonment for a further period of three months and with right of set off. Hence this appeal by the aggrieved appellant. 4. It is contended before me by the learned counsel appointed on State Brief on behalf of the appellant who has preferred this Crl. Appeal No.1404 of 2007 -4- appeal from jail that PW3 is the detecting officer and PWs.2 and 7 are excise officials who accompanied him in the detection and seizure and that apart from those witnesses the only independent witness who is examined by the prosecution is PW1 and he has turned hostile except to the extent of admitting that he has attested in Ext.P1 mahazar, though however, not at the scene of occurrence and that no one residing in the vicinity of the place of occurrence is cited as a witness and further that there is absolutely no evidence in the case that the excise officials seized the alleged arrack kept in MO1 can duly packing and sealing it and that the material alleged to have been seized from the possession of the appellant is what is produced before court especially when there is no witness to swear to its production before court in the form in which PW3 produced it before PW4. It is also contended that PW5 the Crl. Appeal No.1404 of 2007 -5- investigating officer has not conducted any investigation at all on those lines and that the records maintained in the court will show that the person who was entrusted with MO1 for being produced in court was not the one who produced the material objects before court. The submissions of the learned Public Prosecutor are also heard. 5. It is true that PW3 is the detecting officer and PWs.2 and 7 are excise officials in his team and that apart from their evidence the only independent witness examined is PW1 whose evidence is sufficient only to show that the excise officials caused him to sign as an attestor in Ext.P1 though however he has not witnessed the detection and seizure. To some extent the evidence of PW3 stands corroborated by the testimony of PWs.2 and 7. It has to be borne in mind that they are all excise officials whose evidence can be believed for the purpose of entering into a conviction only Crl. Appeal No.1404 of 2007 -6- in the event of the circumstances available in the case enables their evidence to inspire confidence in the judicial mind. PW4 has admitted that in Ext.P5 forwarding note as against column No.10 the space is blank though it is space provided for sample seal being affixed. This means that sample seal had not been affixed when the material object was forwarded to the laboratory. He has also admitted that in Ext.P8 report particulars of the 'thondi' article had been mentioned only as five litre arrack in a black can of five litre capacity. .............................. .............................................. If at all the can was packed and sealed that would certainly have been mentioned in the said report. Further, it is seen from Ext.P8 report that the said material object was forwarded by the Excise Inspector to the Judicial First Class Magistrate, Neyyattinkara on 04/02/99 through Sri.V.Sukumaran Nair and Crl. Appeal No.1404 of 2007 -7- PW6 the 'thondi' clerk of the Judicial First Class Magistrate's Court-I has stated in cross examination that it was Excise Guard Sukumaran Nair who has produced MO1 before court. At the same time, Ext.P7 is another report whereunder the Excise Inspector has forwarded on the same day viz. 04/02/99 the appellant/accused; occurrence report, arrest memo, arrest intimation, the 'thondi' seized along with the 'thondi' list and the proforma for forwarding the 'thondi' articles for chemical examination through Excise Guard G.Rajan and J.Christudas. It is not evident as to how MO1 entrusted with G.Rajan and J.Christudas came to the possession of V.Sukumaran Nair the Excise Guard so as to be produced before Court by him under Ext.P8 on 04/02/99 itself. However, in Ext.P8 the Magistrate is seen to have passed an order to verify and receive the same. Ext.P10 which is the relevant entry in the 'thondi' register in relation to the present case is T.39 of 99 and Crl. Appeal No.1404 of 2007 -8- that is proved by PW6. But in the said entry also what is recorded is only as follows:- and that also is on 04/02/99. The above description of the material object is exactly as stated in Ext.P8. If at all the material object had been closed, tied and sealed as stated in Ext.P1 mahazar that would have found a place both in Ext.P8 and in Ext.P10. Strangely enough such details are absent both in Exts.P8 and P10. This fact added to the circumstance that the Excise Inspector had entrusted the articles to be produced before court also with Excise Guard G.Rajan and J.Christudas on the very same day namely 04/02/99 and it is seen that it was V.Sukumaran Nair the Excise Guard who produced it before court leaves unexplained the situation as to what G.Rajan and J.Christudas Crl. Appeal No.1404 of 2007 -9- did before it was despatched through Excise Guard V.Sukumaran Nair under Ext.P8. Excise Guard G. Rajan and J.Christudas mentioned in Ext.P7 as also Excise Guard V. Sukumaran Nair made mention of in Ext.P8 are not examined in this case to explain the above aspects. It is worthy to note that the offence is one under Section 58 of the Abkari Act which visits the offender with very serious punishment as the sentence provided for offence under Section 58 of the Abkari Act is imprisonment for a term which may extent to ten years and with fine which shall not be less than Rs.1 lakh. Dealing with such serious offences in such casual manner cannot be given any allowance to the detriment of the accused who has to undergo severe sentence consequent on being found guilty. 6. In the circumstances, the appellant should have been acquitted at least granting him benefit of doubt. The court below having Crl. Appeal No.1404 of 2007 -10- not done that the conviction and sentence entered into by the court below deserves to be set aside and the appellant acquitted of the said offence punishable under Section 58 of the Abkari Act. 7. In the result, allowing this appeal, I set aside the conviction and sentence passed by the court below against the appellant and acquit him of the offence under Section 58 of the Abkari Act. 8. Forward a copy of this judgment to the appellant through the Superintendent of Central Prison, Thiruvananthapuram. Also issue release warrant for release of the appellant forthwith in case his detention is not required to be had in connection with any other case. K.P.BALACHANDRAN, JUDGE kns/- Crl. Appeal No.1404 of 2007 -11- K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.1404 of 2007 ------------------------------------------------ Dated this the 12th day of February, 2008 ORDER Learned counsel appointed on State Brief has not turned up to argue this appeal till 4.25 p.m though this appeal was kept aside awaiting him to turn up. Advocate Smt.P.Maya is appointed on State Brief to argue this appeal removing Sri.R.V.Sujit Kumar from the brief given to him. Place the matter before the Registry to have the name of Advocate Sri.R.V.Sujit Kumar removed from the rolls of advocates to be appointed on State Brief resorting to the procedure prescribed. Furnish all relevant records to Advocate Smt.P.Maya to enable her to argue the appeal on 20/02/08. K.P.BALACHANDRAN, JUDGE Crl. Appeal No.1404 of 2007 -12- kns/-