IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 CRL.A.No. 664 of 2002(A) ----------------------------------- SC.49/1999 of ADDL. DISTRICT & SESSIONS COURT (FAST TRACK-I), KOZHIKODE .................... APPELLANTS/ACCUSED ----------------------------------- 1. MANI, S/O. GOPALAN, MAKKADAMTHURUTHY HOUSE, VIYYUR AMSOM OF KOLLAM DESOM OF KOZHIKODE DISTRICT. 2. SREEDHARAN, S/O. CHANGARAN, PARAKANDATHIL HOUSE, VIYYUR AMSOM OF KOLLAM DESOM OF KOZHIKODE DISTRICT. BY ADV. MR.SUNNY MATHEW RESPONDENT/COMPLAINANT ------------------------------------------- THE SUB INSPECTOR OF POLICE, KOYILANDY, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.PUSHPALATHA M.K. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A.No. 664 of 2002(A) ORDER ON CRL.MP.NO.5601/2002 IN CRL. A. NO.664/2002 DISMISSED 03/04/2009. SD/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.S. TO JUDGE Rs/ S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.A.NO.664 OF 2002 () ----------------------------------- Dated this the 3rd day of April, 2009 J U D G M E N T The appellants are the accused (A1 and A2) in S.C.No.49/1999 on the file of Additional District and Sessions Court (Fast Track-I), Kozhikode. Both of them had faced trial for the offence punishable under Section 55(a) of the Abkari Act, for short, the 'Act' on a charge laid by the Assistant Sub Inspector of police, Koyilandy police station. They had pleaded not guilty to the offence. The learned Assistant Sessions Judge, after trial, found them guilty of the offence, convicted them thereunder, sentencing each of them to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/- with default term of simple imprisonment for nine months more. Aggrieved by the conviction and sentence, the accused (A1 and A2) had preferred this appeal. 2. The learned counsel for the appellants produced a CRL.A.664/02 2 photo copy of the death certificate relating to the 2nd appellant, A2, submitting that he had passed away on 16.12.2003. I find no reason to doubt the submission made by the counsel regarding the death of the 2nd appellant, A2. However, as fine also forms part of the sentence imposed against the deceased appellant, the appeal as a whole does not abate as envisaged under Section 394 of the Cr.P.C. So much so, I proceed to consider the merits of the conviction imposed against the deceased appellant also, under the impugned judgment passed by the learned Sessions Judge. 3. The prosecution case in brief is that, on the evening of 13.4.1998, pursuant to information received that the accused were engaged in the sale of illicit arrack, PW1, a Probationary S.I. of police with a police party proceeded to Illathuthazham within the jurisdiction of Koyilandy police station, and, reaching there, he saw the accused, both of them, carrying one cannas each in their possession. Seeing the police party, the accused threw away the cannases held by them and fled from the scene. Though the police party chased the accused, they could not be apprehended. The cannases CRL.A.664/02 3 thrown away by the accused were retrieved and in one of them 10 litres of arrack and in the other 2.5 litres of arrack was detected. According to the prosecution, the cannas containing 10 litres of arrack was possessed by A1, and other cannas having 2.5 litres of arrack was possessed by A2. From the respective cannases, samples were collected in two bottles separately and sealed at the spot. Ext.P1 mahazar was prepared over the seizure of the contraband and also the samples collected. Returning to the station, PW1 registered the crime under Ext.P2 FIR. The investigation of the crime was conducted by A.S.I of police, Koyilandy, and, after its completion, he laid a charge before the court indicting of the accused for the offences punishable under Section 55(a) of the Act. During the course of investigation, the accused surrendered before the Magistrate court and they were enlarged on bail. Pursuant to committal of the case, the case was made over to the Additional District and Sessions Judge (Fast Track – I), Kozhikode, for trial and disposal. The accused appeared before that court and after complying with the formalities, the learned Sessions Judge framed charges against the accused for the offence punishable under CRL.A.664/02 4 Section 55 (a) of the Abkari Act, to which both of them pleaded not guilty. Prosecution examined PWs.1 to 5, got marked Exts.P1 to P7 and identified MO1 and MO2 to prove its case. The accused when questioned under Section 313 of the Cr.P.C., reiterating their innocence contended that they had been falsely implicated on account of political animosity. Though such a defence was canvassed, no evidence was adduced thereof. The learned Assistant Sessions Judge, after considering the materials tendered in the case, found the accused guilty of the offences indicted and thereupon they were convicted and sentenced as indicated above. 4. I heard the learned counsel for the appellants and also the learned Public Prosecutor. The main thrust of attack pressed into service by the learned counsel for the appellants to assail the conviction is that the prosecution had not produced any convincing evidence proving the identity of the accused as the two persons who had fled away from the scene, leaving beside the contraband, when the police party consisting of PWs.1 and 2 reached the spot of crime. Other than the evidence of PWs.1 and 2, the police officials, there is CRL.A.664/02 5 nothing on record to show that the accused were the persons who had been found carrying MO1 and MO2 cannases even if the prosecution case is accepted in toto, is the submission of the counsel. PW3, an attester to Ext.P1 mahazar had turned hostile to the prosecution case is also canvassed by the counsel to support his submission that proper identification of the accused had not been proved in the case. PW4 is an attester to the scene mahazar prepared subsequently after registration of the crime on the basis of the seizure made. So much so, his evidence is not in any way helpful to the prosecution. PW5, who was then the S.I. of police, did not conduct any investigation and was examined solely to prove that the charge had been laid by the A.S.I. of Police, who, had then, already passed away. The entire edifice of the case set up against the accused, it is submitted, rested on the evidence of PWs.1 and 2, the police officials who detected the offence and seized the contraband. Without independent corroborating evidence, it is submitted, the assertion of these witnesses over the identification made of the accused should not have been acted upon by the court below especially in view of the gravity of the offence imputed against them. CRL.A.664/02 6 5. I have perused the records of the case giving consideration to the submissions made by the counsel. The prosecution case entirely rested on proof of identification of the accused as the persons who possessed illicit arrack, for which the evidence adduced is that of PWs.1 and 2, the police officials who detected the offence. The materials produced further indicate that at the time of detection of the offence and seizure of the contraband PW1 was a probationary officer. He proceeded to the spot, according to the prosecution, after getting definite information that the accused were engaged in the sale of illicit arrack. The identity of the accused was previously known to that police officer, is the case of the prosecution. Even assuming that the version of the prosecution is correct the question arising for consideration is whether as on the date of detection and also registration of the crime, was he an Abkari Officer contemplated under Section 4 of the Act. In addition to the excise officials, the Government had notified officers in the police department and also Revenue Officials to exercise the powers as Abkari Officers in relation to the detection and investigation of the CRL.A.664/02 7 various abkari offences covered by the Act. S.R.O.321/1996 is that notification which reads thus: “In exercise of the powers conferred by Section 4 of the Abkari Act, I of 1077 the Government of Kerala hereby appoint all police officers of and above the rank of Sub Inspector of Police in charge of Law and Order and working in the General Executive Branch of the Police Department and all Revenue Officers of and above the rank of Deputy Collectors to be Abkari Officers under their respective Jurisdiction for the purposes of Sections 31,32, 33, 34, 35, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari Officers, in the sections aforesaid.” The question in the present case is whether a Probationary Sub Inspector as on the date of the detection of the offence was a S.I. of police as covered by the notification. It could have been stated that the Probationary Officer is also a S.I. and he was only on probation. But the evidence let in the case by the prosecution itself shows that the investigation of CRL.A.664/02 8 the crime was conducted by an A.S.I. of police, as disclosed by the evidence of PW5, the S.I. of police. When he was questioned as to why the investigation was handed over to the A.S.I. of police, he had given an explanation that detection of the offence was conducted by a junior officer, no doubt, PW1, the Probationary Officer. So, the probationary officer was an officer even below the rank of the A.S.I. If the version of PW5, the S.I. is accepted, the detection and also the investigation of the crime, both, are found to be in violation of the provisions of the Act. If that be the case of the prosecution, another aspect to be noted is that the probationary officer proceeded to the spot after getting prior information. If it was a case of an accidental detection, then, as a police officer, who was bound to and expected to prevent any offence/apprehend an offender committing a crime would have come to his rescue. But that was not the nature of the allegations nor the circumstances under which the detection of the offence was made. If that be the case of the detection and also investigation, another circumstance revealed from the evidence of PWs.1 and 2 would show that there was no convincing evidence as to which of the accused possessed the CRL.A.664/02 9 cannas containing 10 litres of arrack and the other cannas containing 2.5 litres of arrack. PW1 gave evidence on the above aspect. However, PW2, the police constable who accompanied PW1, would state that the accused who carried a cannas each, seeing the police party threw them away and fled from the scene. He has not stated that A1 possessed cannas containing 10 litres of illicit arrack and A2 possessed the other cannas containing 2.5 litres. It is unsafe to act solely upon the evidence of PW1, the Probationary Officer, as to which of the two accused possessed the cannases containing different quantity. Not only there is no convincing evidence over the identification of the accused, the prosecution has also not proved which of the accused had possessed the cannasses having different quantity of arrack. Considering all these aspects, I find there is absolutely no legal evidence to sustain the conviction passed against any of the accused for the grave offence indicted against them. Conviction and sentence imposed by the court below, in the above circumstances, cannot be sustained. The conviction and sentence imposed against both the accused are set aside and they are acquitted of the offence under Section 55 (a) of the Abkari act. Fine CRL.A.664/02 10 amount, if any, remitted shall be refunded to the respective accused, A1 and the legal heirs of A2, subject to satisfaction of their identity and entitlement. Appeal is allowed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.A.NO.664 OF 2002 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 3rd April, 2009