IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 CRL.A.No. 840 of 2002() --------------------------------- SC. 304/1999 OF THE IIIRD ADDL. SESSIONS COURT, THRISSUR ........... APPELLANT(S): ACCUSED --------------------- VARGHESE S/O.AKKARAKKARAN LAZAR, CHRIST COLLEGE BYE-LANE ROAD, IRINJALAKUDA VILLAGE MUKUNDAPURAM TALUK. BY ADVS.MR.P.VIJAYA BHANU MR.P.M.RAFIQ RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CRL.MP. NO.6984/2002 IN CRA. NO.840/2002 DISMISSED 09/07/2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE TSS M.N. KRISHNAN, J. --------------------------- CRL.A.NO.840 OF 2002 ------------------------------ Dated this the 9th day of July, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed in S.C.No.304.1999 of the Third Additional Sessions Judge, Trichur. It is the case of the prosecution that on 26.11.1996 at about 4.30 p.m in front of Tee Pee Hardwares in Irinjalakuda Municipal Market, the accused was found in possession of 2.225 litres of illicit liquor in 5 bottles and Rs.240/- and thereby committed the offences under Sections 55(a) and (i) of the Abkari Act. The court below found the accused guilty under both the sections and convicted him to undergo R.I for a period of two years and to pay a fine of Rs. One lakh and in default, to undergo R.I for 6 months for the offence under Section 55(i) of the Abkari Act. It is against that decision, the accused has come up in appeal. 2. The points that arise for determination in the appeal are (1) whether there are sufficient materials to hold that the accused has committed the offences under Sections 55(a) and (i) of the Abkari Act (2) Is there anything to interfere with the said decision. 2 CRL.A.NO.840/02 3. Points 1 and 2: Heard the learned counsel for the appellant as well as the Prosecutor. The learned counsel for the appellant was able to picturize the improbability especially in the backdrop of the materials available and wants this Court to analyse the evidence meticulously to find out whether truth can be established by the evidence of Pws 1 to 3. He had taken me through the seizure mahazer, evidence of Pws 1 to 3, Dws 1 to 3 and also Exts. D1 and D1(a) in support of his contentions. The learned Prosecutor would contend that everything is done in order and therefore nothing requires interference. Unlike other Abkari cases, it is seen unusually that an independent witness is loyal to the prosecution. The person, who had detected the offence is not coming before the court and it is submitted that he is laid up and that he is not in a position to talk. The learned counsel for the appellant submits before me that his client namely the accused is a respectable man of the locality and he had contested in the municipal election in Ward XIII of the Irinjalakuda Municipality and an opposite candidate by name Joshi, who was also an independent candidate lost the election on account of the 3 CRL.A.NO.840/02 accused contesting the election. It is also submitted that this Joshi is a person running a bar and it is under influence of that person, the case has been booked. It has to be borne in mind that a person who contests the election even though has some times criminal background, they may not try to exhibit it in public. Here, the alleged incident takes place at 4.30 p.m on a day in the middle of the market. According to the prosecution, while they were coming by jeep and stopped the jeep and were walking, they saw the accused walking with a sack which contained 5 bottles of liquor when opened, tasted and smelt, had the features of illicit liquor and therefore samples were taken from all the bottles in certain proportion to make it 180 ml and then it was sent for chemical analysis which revealed that it contained ethyl alcohol by volume. 4. PW1 is the person, who had accompanied the Circle Inspector of Police. He would say that they were able to find the accused with the bag and they had intercepted and seized the liquor from him. Except for stating that it is illicit liquor, they had not made mention of the type of liquor. 5. Pw2 is admittedly a porter working in the market 4 CRL.A.NO.840/02 which is situated 100meters behind the Tee Pee Hardwares in front of which it is stated that the alleged incident had taken place. When he was examined in chief to start with, he would say that he saw the incident in between 3.30 p.m and 4 p.m and when he was confronted with 161 statement, he would change his version and said that it can be 4.30 as well. It is quite astonishing to find that the incident took place on 26.11.1997 and the witness was examined on 3.8.2002 and after a long period of 5 years the witness was able to state how many ten rupee notes, 20 rupee notes and 50 rupee notes was in the pocket of the accused, whereas he is not able to precisely say what was the time when the accused was really apprehended. It has also come out in evidence that he is a man who occasionally drinks. A reading of his evidence as a whole does not inspire confidence in me to accept his evidence and it appears as a tutored evidence. 6. PW3 did not have anything personal to do at that time and he had only conducted later part of the investigation. It is in this background the evidence of Dws1 to 3 are to be examined. They were examined to prove that the accused has contested election from Ward XIII of the municipality and it 5 CRL.A.NO.840/02 has also come out in evidence that Joshi had also contested the election as an independent candidate and lost. 7. DW1 is a material witness for the reason that, the distance between his shop and the alleged place of incident is hardly 5 feet. He vehemently submits that no incident such as apprehension and seizure of liquor from the custody of the accused had taken place in front of his shop to his knowledge. It has been brought out in cross examination that from morning till the close of the shop he is available in the shop. Why should a man come and give false evidence when he has special interest. I feel if something has transpired, ordinarily excise officials should have made the nearby people as witnesses, in stead of attempting to get a porter who is working about 100 meters away from the place of incident as a witness. So, there is something fishy in the whole matter and the conscience of the court does not permit to believe the evidence of PWs 1 and 2 in this case to find the accused guilty of the offence. Then going into the technical arguments it has to be stated that the prosecution is not able to say what type of liquor it is. It is not able to state whether it is brandy, whiskey or illicit arrack or toddy. Though it is 6 CRL.A.NO.840/02 stated that it is coloured liquor and since there is a chance it being Indian made foreign liquor or illicit arrack, and so non attempt of the prosecution to correctly define what is the type of liquid that is alleged to be seized also creates suspicion in the mind regarding truthfulness of the case. So, on an analysis of the entire materials, I am satisfied that there is evidence to connect the accused with the crime and therefore, I feel that benefit of doubt has to be given to the accused which means that he is entitled to acquittal. 8. Therefore, the conviction and sentence passed by the court below under Section 55(i) and 58 of the Abkari Act is set aside and the accused is found not guilty of the said offence and acquitted. If he has deposited any amount as a condition precedent for suspension of the offence, in the light of the acquittal the amount has to be given back to him on appropriate application. M.N. KRISHNAN, JUDGE cl 7 CRL.A.NO.840/02 M.N. KRISHNAN, J. --------------------------- CRL.A.NO.840 OF 2002 ------------------------------ 9th day of July, 2009 JUDGMENT 8 CRL.A.NO.840/02 9 CRL.A.NO.840/02