IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 12TH FEBRUARY 2008 / 23RD MAGHA 1929 CRL.A.No. 684 of 2002() ----------------------- SC.148/2001 of ADDL.DISTRICT & SESSIONS COURT FAST TRACK COURT (ADHOC) II, KOTTAYAM .................... APPELLANTS/ACCUSED: ---------------------------- 1. MOHANAN, S/O. VELAYUDHAN, PATTATHIL HOUSE, PERUMTHURUTHU KARA, KALLARA VILLAGE. 2. GOPALAN & KUKKU, S/O. KUNJANKORI, THUNDATHIL VEEDU, PERUMTHURUTHU KARA, KALLARA VILLAGE. 3. RAMAN, S/O. NEELAKANDAN, THOTTATHIL VEEDU, PERUMTHURUTHU KARA, KALLARA VILLAGE. 4. RAJU, S/O. LUKOSE, NIRAPPEL VEEDU, PERUMTHURUTHU KARA, KALLARA VILLAGE. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENT/COMPLAINANT: ---------------------------------- STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, KADATHURUTHY POLICE STATION. BY PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/02/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A.No.684/2002 2 ORDER ON C.M.P.No.5753/2002 IN CRL.A.No.684/2002 DISMISSED. 12/02/2008 Sd/- A.K.BASHEER,JUDGE TRUE COPY P.A.TO JUDGE A.K.BASHEER,J ======================= Crl.Appeal.No.684 of 2002 ========================== Dated this the 12th day of February, 2008 JUDGMENT The appellants, who are four in number, were tried for an offence punishable under Section 55 (a) (i) of the Abkari Act. The trial court found that the prosecution had succeeded in proving the charge against the appellants/accused, and accordingly, they were convicted and sentenced to undergo rigorous imprisonment for three years each and to pay a fine of Rs.1,00,000/- each. It was further directed that in default of payment of fine, the accused shall suffer simple imprisonment for 60 days each. This appeal is filed against the above order of conviction and sentence. 2. The prosecution case may be briefly noticed: 3. On August 3, 2000, at about 12.30 p.m. accused Nos.1 to 3 brought two plastic cans containing 43 litres of toddy in a country boat and kept them on the varanda of the house of accused No.4. The prosecution alleged that the toddy was brought for sale and the 4 accused persons had no licence or Crl.A.No.684/2002 2 authority either to carry or store/sell the toddy. The police had come to the residence of accused No.4 at about 2.p.m. on receipt of information from the local people. The cans containing the toddy were seized in the presence of the witnesses. Accused No.4 was arrested. However accused Nos.1 to 3, even according to the prosecution, had fled the scene immediately after keeping the two cans on the varanda of the residence of accused No.4. Therefore they could not be apprehended. 4. The prosecution examined PWs.1 to 6 and Exts.P1 to P3 and MO1 and MO2 were marked. There was no oral or documentary evidence on the side of the defence. 5. The learned Sessions Judge after considering the oral and documentary evidence on record, found that the accused had kept toddy in their possession in excess of the permissible quantity without any licence or authority. But the learned Judge found that the prosecution did not succeed in proving that the toddy was stored by the accused for sale at the house of accused No.4. 6. It had come out in evidence that about 200 people who claimed to be members of Madhya Nirodhana Samithi had Crl.A.No.684/2002 3 gathered on the banks of Puthenthodu canal on August 3, 2000, as part of their agitation in order to prevent storage and sale of toddy in that area. It is also on record that the licensed toddy shop which had been working in that area had to be closed down because of the agitation. 7. According to PW1, accused Nos.1 to 3 had come in a country boat through the canal at about 12.30 p.m. on that day. A large number of people, who gathered on the two banks of that canal, had seen accused Nos.1 to 3 carrying two cans containing toddy in the country boat. PW1 asserted that he had also seen the accused coming in the boat with MOs.1 and 2 cans. It was admitted by PW1 that those people who had gathered on the two banks belonged to the organisation referred to above. Accused Nos.1 to 3 had stopped the country boat on the bank and had taken the two cans containing toddy and kept them on the varanda of the residence of accused No.4, which was very close to the embankment. Immediately after keeping the cans on the varanda, the three accused persons had got into the country boat and gone to the other side of the canal. Thereafter, they ran away from the scene. PW1 further stated that Police had come Crl.A.No.684/2002 4 to the residence of accused No.4 later, and taken the two cans of toddy into custody. He had seen the police taking samples from the toddy bottles. The cans and the sample bottles were sealed. Mahazer was prepared, in which he had signed. He identified his signature in Ext.P1 mahazer. According to PW1, accused No.4 was present at the time when the contraband article was taken into custody by the police. In cross examination, PW1 admitted that he was also a member of Madhya Nirodhana Samithi, and that the demand of the Samithi was to shift the toddy shop from that area. 8. PW2 also deposed before the court that he had seen the police seizing the two cans containing toddy from the residence of accused No.4. He had stated that accused No.3 was rowing the boat and the toddy was brought by accused Nos.1 to 3 in the said boat. Two cans containing toddy were taken by the three accused and kept on the varanda of the residence of accused No.4. Accused Nos.1 to 3 had gone back to the other shore in the country boat and escaped from the scene. He also spoke about sampling and preparation of seizure mahazer. He admitted his signature in Ext.P1 seizure mahazer. In cross Crl.A.No.684/2002 5 examination, this witness stated that he was one among the 200 strong crowd who had gathered on the embankment when accused Nos.1 to 3 had brought the toddy in the country boat. This witness fairly conceded that he had seen the accused taking the cans and keeping them on the varanda of the residence of accused No.4 from the other side of the canal which was about 25 to 30 meters away. It was also admitted by the witness that he had not seen any document to prove ownership of the residence in the name of accused No.4. 9. PW3, the Circle Inspector of Police stated that he had come to the residence of accused No.4 on receipt of information from the members of the Madhya Nirodhana Samithi, over the telephone. He reached the house at about 2.p.m and found Mos.1 and 2 cans containing toddy on the varanda of the residence of accused No.4. Sample was taken from the cans in bottles. The cans and bottles were sealed. Ext.P1 mahazer was prepared. Accused No.4 was arrested and taken to the police station. In cross examination, he admitted that he had not stated in Ext.P1 that preservatives had been added to the two bottles of sample. Pws.4 to 6, the official witnesses spoke about the Crl.A.No.684/2002 6 registration of the crime, investigation etc. 10. It may be noticed that the agitation was admittedly going on against functioning of the licensed toddy shop in that area. It is also on record that the toddy shop had been closed down for some time due to the agitation. PWs.1 and 2 were admittedly members of the organisation which was in the forefront of the agitation. They had deposed in court that more than 200 people had gathered on the embankment of the canal and they had seen accused Nos.1 to 3 bringing Mos.1 and 2 cans containing toddy in a country boat. The prosecution case is that the three accused stopped the boat and took out the cans and kept them on the varanda of the house of accused No.4. PWs.1 and 2 had stated before the court that the three accused had fled the scene after keeping the two cans on the varanda of the residence of accused No.4. They had crossed the canal and gone over to the other embankment in the same boat. Obviously, the three accused were running in fright. But PWs.1 and 2 did not have a case that they had tried to stop the three accused or restrain them while they were attempting to escape. If in fact, PWs.1 and 2 who were admittedly members of Madhya Crl.A.No.684/2002 7 Nirodhana Samithi were certain that the accused were carrying or transporting toddy without any licence or authority, the normal human conduct would have been to prevent them from taking out the cans and keeping them on the varanda of the house of accused No.4. In other words, PWs.1 and 2 and the entire crowd of about 200 people had remained silent spectators. More importantly Pws.1 and 2 did not have a case that accused Nos.1 to 3 had handed over the cans to accused No.4. It is true that PW2 had stated that the accused No.4 was present at his residence when the cans were kept there. But PW1 did not have such a case. Further, the prosecution had not adduced any satisfactory evidence to show that accused No.4 was in conscious possession of the contraband article. In this context it may also be noticed that the prosecution had not produced any document to show that the house belonged to accused No.4. It had also come out on record that, apart from accused No.4, other family members were also living in that house. Indisputably MOs.1 and 2 cans were found lying on the varanda of the house of accused No.4. 11. In this context, it may be noticed that the specific Crl.A.No.684/2002 8 contention raised on behalf of accused No.4 is that he was not in conscious possession of the alleged contraband. He had never seen anybody keeping those two cans on the varanda of his residence. Accused No.4 had a specific contention that he was taken to the police station from the road while he was coming for lunch after his work. It was admitted by Pws.1 and 2 that accused No.4 was a rubber tapper. Similarly, accused No.4 when he was questioned under Section 313 of the Code of Criminal Procedure had disputed the assertion made by Pws.1 and 2 that the house from where the contraband article was seized belonged to him. In the absence of any evidence to show that the house belonged to accused No.4 exclusively, it was not proper or safe for the trial court to proceed as though the contraband article was seized from the residence of accused No.4. 12. Coming to the evidence that has been adduced as against accused Nos.1 to 3, I am not satisfied that the prosecution had succeeded in proving that they had brought Mos.1 and 2 cans in the country boat for the purpose of sale. As mentioned earlier, PWs.1 and 2 were admittedly members of Crl.A.No.684/2002 9 Madhya Nirodhana Samithi, which was in the forefront of the agitation against running of the toddy shop in that area. Therefore, testimonies of PWs.1 and 2 were obviously interested versions. I am not satisfied that evidence of PWs.1 and 2 with regard to the involvement of accused Nos.1 to 3 can be accepted. It cannot be believed that accused Nos.1 to 3 would have dared to bring two cans of toddy in broad day light, and that too being watched by about 200 agitators. 13. Having regard to the totality of the facts and circumstances, I am not satisfied that any reliance can be placed on the evidence of PWs.1 and 2. If the evidence of PWs.1 and 2 is not liable to be believed, what remains is the evidence of PW3, who had allegedly recovered the contraband article from the varanda of the residence of accused No.4. Yet again, there is no evidence to show that accused No.4 was in conscious possession of the contraband article. At any rate, prosecution did not have a case that accused Nos.1 to 3 had delivered the two cans to accused No.4 and that accused No.4 had accepted and kept them on the varanda of his residence. The trial court, in my view, was not justified in holding the accused guilty. Crl.A.No.684/2002 10 Significantly the learned Sessions Judge had found that the prosecution had failed to prove that toddy had been kept by the accused for sale. 14. Having regard to the entire facts and circumstances, I am satisfied that the order of conviction and sentence passed by the court below is liable to be set aside. I do so. Appellants are acquitted. The bail bonds executed by them are cancelled. The appeal is allowed. A.K.BASHEER,JUDGE dvs