IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 17TH SEPTEMBER, 2008 / 26TH BHADRA, 1930 CRL.A.No. 706 of 2003 ( SC.250/1999 of ADDL. SESSIONS COURT (ADHOC- I), KOZHIKODE) .................... APPELLANT/ACCUSED: --------------------------- GANGADHARAN, S/O.RARICHAN, KARUMPAPOYIL, KOZHIKODE DISTRICT. BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENT/COMPLAINANT: ------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SMT.K.L.LAKSHMI RANI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.No. 706 of 2003 --------------------------------------------- Dated this the 17th day of September, 2008 J U D G M E N T The sole accused in S.C.No.250/99 of the Additional District and Sessions Judge Fast Track (ADHOC-1), Kozhikode challenges his conviction and sentence in this appeal. As per the impugned judgment, the appellant was convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- and in default, sentence is fixed as nine months simple imprisonment. 2. The prosecution case is that on 23.9.1997 at about 6.45 p.m., the Excise party on patrol duty found the accused in possession of 3½ litres of illicit arrack in a 5 litre kannas from the Panchayath road at Sivapuram amsom. The accused was arrested and the contraband articles were seized. The sample was taken and all these were detailed in the mahazar. Thereafter, Crime No.98 of 1997 was registered in the Balussery Excise Range Office Crl.A.NO.706 of 2003 :-2-: for the offence under Section 55(a) of the Abkari Act. After completing the investigation, they filed a final report based upon which the court took cognizance and instituted C.P.No.61 of 1999 in the Judicial First Class Magistrate Court, Koyilandi and subsequently, the case was committed to the Sessions Court, Kozhikode from where it was made over to the Assistant Sessions Court, Koyilandi for trial and a formal charge was framed in that court. The accused pleaded not guilty. During that stage, the case was transferred to the Court of Additional District and Sessions Judge Fast Track (ADHOC-I), Kozhikode. 3. During the course of trial, Pws.1 to 5 were examined from the side of prosecution and marked Exts.P1 to P7(a) as documentary evidences. From the side of defence, there was no evidence either as oral or documentary. The material object namely, 5 litres black kannas with arrack about 3½ litres is marked as MO-1. Crl.A.NO.706 of 2003 :-3-: The trial court finally found that the accused had committed the offence punishable under Section 55(a) of the Abkari Act and accordingly, he was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- and it was further ordered to undergo simple imprisonment for nine months in case the accused failed to pay the fine amount. It is the above conviction and sentence challenged in this appeal. 4. I have heard learned counsel appearing for the appellant/accused Sri.K.A.Salil Narayanan and also the learned Public Prosecutor. 5. Learned counsel appearing for the appellant submits that out of the five witnesses examined for the prosecution, Pws.3 and 4 are the independent witnesses to prove the detection of the crime and seizure of the contraband articles, but they turned hostile and as such, the only evidence is the interested testimony of Pws.1,2 and 5. It is also pointed out that the oral testimonies of Crl.A.NO.706 of 2003 :-4-: Pws.1,2 and 5 are shabby in nature and are not sufficient to hold that the accused is guilty of the offence charged against him. The learned counsel submits that in this case, the officer who detected the crime namely, CW-4 is not examined and the non-examination of that material witness caused great prejudice to the accused and to substantiate the above point, the learned counsel pointed out that Pws.1,2 and 5 were not able to give any plausible explanation and evidence for the delay occurred in reaching Ext.P1 scene mahazar in the court. According to PW-1, though the scene mahazar was prepared on 23.9.1997 itself, the same reached in the court only on the expiry of more than two years. No explanation is offered by either PW-1 or PW-2 or by the investigating officer PW-5. 6. It is also pointed out by the counsel that the evidences of Pws.1,2 and 5 are not sufficient to prove the prosecution case against the accused. Thus, Crl.A.NO.706 of 2003 :-5-: according to the learned counsel, there is no evidence to prove the prosecution case and the evidence which the prosecution produced is only shabby on the basis of which no conclusion can be arrived against the accused. 7. On the other hand, the learned Public Prosecutor submits that through the evidence of Pws.1,2 and 5, the prosecution has discharged its duty in proving the guilty of the accused. It is submitted that the evidences of Pws.1 and 2 are sufficient to show the detection of the crime and seizure of the contraband articles from the possession of the accused. It is also pointed out that Ext.P1 is a contemporary document which would show the seizure from the accused. Thus, according to the prosecution, the finding arrived at by the court below is perfectly valid and legal and no interference is called for. 8. I have carefully considered the contentions advanced by the learned counsel for the appellant as Crl.A.NO.706 of 2003 :-6-: well as the learned Public Prosecutor and also perused the materials and evidence on record. The appellant/accused was convicted and sentenced to undergo two years rigorous imprisonment and to pay a fine of Rs.1,00,000/- on the basis of the allegation that he was found in possession of 3½ litres of illicit arrack. As rightly pointed out by counsel for the appellant, the only evidence advanced by the prosecution to substantiate the allegation is that of Pws.1,2 and 5. The officer viz., CW-4 who detected the crime is not examined. I am of the view that if the evidences of official witnesses are capable to instil the confidence of the court, there need not be any further evidence from independent sources and it is not a rule that for the purpose of acting upon official witnesses, there must be corroboration from independent sources. Even if there is no evidence from independent sources, according to me, the evidence of official witnesses can be relied and Crl.A.NO.706 of 2003 :-7-: acted upon. But, such evidence must be cogent and reliable. Going by the evidences of three official witnesses who were examined, it can be seen that their depositions are too shabby and not capable to instil the confidence of the court to support the prosecution case. During the cross examination, PW-1 stated that the independent witnesses reached along with the raiding party and he had categorically and positively stated that he is not remembering as to who took the sample. He had also admitted that Ext.P1 seizure mahazar reached the court only on 13.5.1999. According to him, he does not know where the mahazar was during such period. It is also the case of PW-1 that till the property was produced in the court, same was under the custody of the Inspector. There is no evidence as to when the article reached in the court and also there is no evidence as to where the same was kept till it reached in the court. PW-1 further stated during his examination that Crl.A.NO.706 of 2003 :-8-: Ext.P5 is not sufficient to show that what is the capacity of the bottle in which sample was taken. It is also stated that during his statement before the Investigating Officer, he had not stated the capacity of the bottle in which the sample was taken. More over, PW-1 had stated that the sample reached in the court after the expiry of eight days from the date of seizure. No explanation was given by PW-1 for such delayed receipt of sample in the court. Similarly, in the case of deposition of PW-2, he had stated that the property was under the control of the Excise Inspector. PW-2 had also stated that he had not stated that the Excise Inspector had identified the liquid by smelling and tasting. In his statement, the investigating officer does not show about the capacity of the sampling bottle. PW-5 is the officer who laid the charge sheet. During his examination, he had submitted that he did not see the thondi article. He deposed that the charge sheet was submitted on Crl.A.NO.706 of 2003 :-9-: 13.5.1999 and he had nothing to offer any explanation for the delay. So the evidences of the official witnesses viz., Pws.1,2 and 5 are not trustworthy to hold that the accused is guilty of the offence charged against him. 9. The independent witnesses viz., Pws.3 and 4 turned hostile to the prosecution and though they admitted their signature in Ext.P1, they deposed that they did not witness the detection and the seizure. In this juncture, deposition of PW1 on those aspects is very relevant. PW-1 has earlier stated that the independent witnesses reached along with them. But the prosecution case is that they were from the locality. So, it cannot be said that Pws.3 and 4 are telling lie before the court. Thus, even if there is some material lacuna or defect with respect to the oral testimony of the official witnesses, the same could have made up with the help of independent evidence. But, in the present case, there is no independent evidence at all. Even PW1 had already Crl.A.NO.706 of 2003 :-10-: said that Pws.3 and 4 reached along with the raiding party and hence it cannot be said that independent witnesses are trying to help the accused and deposing against the prosecution. The documentary evidence is also not helpful in favour of prosecution to establish a case beyond doubt against the accused. Therefore, on an overall assessment of the available evidence, I am of the view that the prosecution has miserably failed to establish its case with cogent and acceptable evidence. But, the evidence adduced by the prosecution is very shabby. 10. It is also brought out in evidence that there is culpable delay in reaching Ext.P1 seizure mahazar in the court. No explanation is given by the official witness examined in this case. Pws.1 and 2 had categorically stated that thondi articles are under the control of CW-4 the officer who detected the crime. But, CW-4 was not examined and if CW-4 was examined, the defence would Crl.A.NO.706 of 2003 :-11-: have been able to put those matters to CW-4 especially regarding the delay and to explain the delay occurred on reaching the seizure mahazar in the court and also regarding the custody of the articles alleged to have been seized from the possession of the accused. There is also no explanation for the delay in reaching the so- called sample in the court. In this juncture, it is to be noted that according to PW-1, he did not remember as to who took the sample. So considering the non- examination of CW-4 and the delay in producing the material before the court in time and also the sample, the prosecution case becomes doubtful. Hence, the accused is entitled to get the benefit of doubt also. 11. In the result, I am of the view that the prosecution has miserably failed to establish its case beyond reasonable doubt and the appellant/accused is entitled to get benefit of doubt. Accordingly, this appeal is allowed. The conviction and sentence passed by the Crl.A.NO.706 of 2003 :-12-: court below is set aside. The accused is accordingly acquitted. V.K.Mohanan, Judge MBS/ Crl.A.NO.706 of 2003 :-13-: V.K.MOHANAN, J. -------------------------------------------- Crl.A.NO. 706 OF 2003 -------------------------------------------- J U D G M E N T DATED: 17-9-2008 Crl.A.NO.706 of 2003 :-14-: