IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA TUESDAY, THE 16TH DAY OF NOVEMBER 2010/25TH KARTHIK, 1932 CRL.A.No. 1024 of 2010 ( ) -------------------------- SC.548/2007 of ADDL.SESSIONS COURT (ADHOC-III), KASARAGODE CP.61/2007 of J.M.F.C.-II,HOSDRUG APPELLANT(S): ------------ K.SUNDARAN, S/O.K.DASAN, AGED 52, MOOLAKKANDAM COLONY, AJANOOR VILLAGE HOSDURG, KASARGOD., C.NO.8389 CENTRAL PRISON, KANNUR. BY ADV. SMT.REENA P.R.(STATE BRIEF) RESPONDENT(S): -------------- STATE, REP.BY EXCISE INSPECTOR, HOSDURG RANGE. BY ADV. PUBLIC PROSECUTOR SMT. REKHA C. NAIR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-11-2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------------- Crl. Appeal. No. 1024 of 2010 C ----------------------------------------------------- Dated this the 16th day of November, 2010. JUDGMENT This appeal arises from the conviction and sentence passed against the appellant by the Additional Sessions Court for offences under Section 58 of the Abkari Act to undergo rigorous imprisonment for a period of 3½ years and to pay fine of Rs.1,00,000/- (Rupees One Lakh only) and, in default of payment of fine to under rigorous imprisonment for a further period of 3 months. Set off was allowed. 2. According to prosecution, on 19.8.2002 at about 11 a.m. appellant was found proceeding through the road carrying 5 litres of arrack and when he reached near a grocery shop run by Sivaraman the accused was apprehended and from his custody 5 litres of arrack was seized under a mahazar Ext.P1. The crime was detected when the Assistant Excise Inspector, PW4, was proceeding along with the Excise party. PW1, the Preventive Officer was also present along with the Excise party. The accused, the articles and the documents were produced before the Preventive Officer (PW5), who registered the crime and [Crl.A. No.1024/2010] 2 prepared the occurrence report Ext.P5. The investigation was conducted by PW3, the Excise Inspector, who laid report before the Magistrate Court. 3. The prosecution examined PWs 1 to 5 and marked Exts.P1 to P7 and MO1 on its side. The accused did not adduce any evidence but stated that this is a false case. The appellant is undefended and hence, Adv. Smt. Reena P.R. was appointed as State Brief. Heard both sides. Perused the records. Learned defence counsel argued that there is no independent evidence in this case and hence, there is violation of Section 36 of the Abkari Act. It was pointed out that PW3, who is the Investigating Officer, deposed that he made an attempt to trace out the witnesses but there was no such witnesses. It is also submitted that though the crime was registered on 19.8.2002, the investigation was conducted after 5 years, since 22.3.2007. No witness referred to in the mahazar is in actual existence, it is submitted. Hence, appellant may be acquitted, it is argued. 4. Learned Public Prosecutor submitted that the evidence of PWs 1 and 4, who are the Excise Officials, is sufficient to enter a conviction against the appellant. In the mahzar, two witnesses are cited as independent witnesses and it cannot be said that [Crl.A. No.1024/2010] 3 they are independent witnesses, it is submitted. 5. On hearing both sides and on going through the evidence in detail, I find that appellant has a definite case that this is a falsely foisted case. He belongs to a totally difference locality and this fact is admitted by PW1 and PW4. According to appellant, there was no independent witnesses to the alleged seizure and arrest. PW1 was cross-examined on this aspect. As per the evidence, the incident happened near the shop of one Sivaraman. PW4 admitted that the shop was opened at the time of occurrence. But, the said Sivaraman was not made a witness. There is no explanation for not making him a witness. 6. PW3 is the investigating officer. He stated in the chief examination itself that the address of CW3 and and CW4, the independent witnesses, is not correct and hence they could not be traced. PW5 stated in chief-examination itself that independent witnesses shown in the mahazar are not residing in the address shown therein. Though summons was issued from the court to CW3 and CW4 there is nothing on record to show that such persons are in existence. They were not examined in court also. No attempt was made by the prosecution to procure their presence. [Crl.A. No.1024/2010] 4 7. In the above circumstances, I find that there is some merit in the contention raised by the appellant that there was no independent witnesses to the search. It is seen from the mahzar that the names of the witnesses are recorded in the mahazar against an address and it is written 'signed'. At any rate, doubt is cast whether an independent witness was called to witness the search as required under Section 36 of the Abkari Act. It is in evidence that the shop keeper was available for witnessing the search, had an attempt been made. But, PW2 the detecting officer stated that his shop was not opened on that day, which was contradicted by PW4, who was present in the Excise Party. PW4 is none other than an Assistant Excise Inspector whereas PW1 is only a Preventive Officer. 8. Section 36 of the Abkari Act is mandatory. Two witnesses other than Excise officials must be present at the time of seizure and search. But the evidence would cast a doubt on the question whether two independent witnesses were actually present at the time of seizure and arrest. Hence, there is no substantial compliance of Section 36 of the Abkari Act. 9. It is also relevant to note that neither the the charge framed by the court nor the charge-sheet laid by the Excise [Crl.A. No.1024/2010] 5 officials reveals that the accused had the requisite knowledge as stated in Section 58 of the Act. It is only stated that he was found carrying arrack. Such act is not sufficient to attract offence under Section 58 of Abkari Act. A reading of Section 58 shows that he must be aware and he must have knowledge of the illicit nature of the source of such contraband article. 10. It is true that the evidence of the official witnesses can be acted upon and there is no rule that their evidence, in the absence of independent witnesses, has to be discarded. But, this is a case where the evidence and investigation conducted by PW3 itself indicate that details of the independent witnesses shown in Ext.P1 could be fake. In the above circumstances, I find that the conviction and sentence passed against the appellant are unsustainable. At any rate, it is not proved beyond reasonable doubt that the search and seizure of the contraband article was effected from the accused in the presence of two independent witnesses. Therefore, the accused is entitled for acquittal. Learned defence counsel submitted that appellant is not involved in any other offence and he is in custody for the past more than 1½ year. [Crl.A. No.1024/2010] 6 In the result, the following order is passed: 1) The conviction and sentence passed against the appellant are set aside. 2) Appellant is found not guilty of offence under Section 58 of Abkari Act and he is acquitted of the said offence. 4) The appellant is set at liberty forthwith. 5) The Registry shall issue release order forthwith. This appeal is allowed. Sd/- K.HEMA, JUDGE. krs.