IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 CRL.A.No. 1059 of 2003() ---------------------------------- SC.77/2002 of ADDL. SESSIONS JUDGE, FAST TRACK (ADHOC-II), ERNAKULAM ................................................................................................ APPELLANT(S): ACCUSED ------------------------------------- THAMPAN, S/O. NARAYANAN, CHERUVALLIPADI VEEDU, KOTTAPPADI VILLAGE AND KARA. BY ADVS. SRI.SOJAN MICHEAL SMT.JENCY MICHEAL RESPONDENT(S): COMPLAINANT ----------------------------------------------- STATE OF KERALA- REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY ADV.SRI.C.M.NAZAR, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.1059 OF 2003 -------------------------- Dated this the 13th day of July, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against he conviction and sentence passed in S.C.77/02 of the Addl. Sessions Judge, Ad hoc-II, Ernakulam. The accused was charge sheeted for an offence u/s.55(a) and (i) of the Abkari Act and was found guilty under the provisions of S.55(a) and (i) of Abkari Act and convicted thereunder. It is against that decision the accused has come up in appeal. The case of the prosecution is that, from the Ayurvedic Pharmacy conducted by the accused, the police on information, searched and seized about 54 bottles of 375 ml. Indian made foreign liquor from the building, bearing No.VIII/235, and thereby the accused had committed the offences. The defence of the accused is to the effect that he has never conducted an Ayurvedic Pharmacy and nothing has been seized from his custody and therefore he is not guilty of the offences. The trial court on a consideration of the materials 2 CRL.A.No.1059 OF 2003 and relying upon the evidence of PW.6 found the accused guilty and convicted him thereunder. The witnesses Pws.1 and 2 (independent witnesses) had not supported the case of the prosecution. PW1 is the owner of the premises and he would say that the building is leased to the wife of the accused and PW2 also does not support the case of the prosecution. At the time of the alleged seizure, admittedly the accused was not inside the shop. It is the case of the prosecution that on seeing the police, the accused had ran away The learned counsel for the accused would submit that, the accused is a person of 40% disability and he can not run away as suggested by the prosecution. Since direct evidence is not available to prove the presence of the accused at the premises, the court has to necessarily to rely upon the materials supplied by the prosecution and in case of any materials, supplied by the defence. The learned counsel would very strongly contend before me that, a person who is having a disability of 40%, can't run away as projected by the prosecution and the mere 3 CRL.A.No.1059 OF 2003 statement given by PW6, that he used to see the accused in the shop previously can not be a ground to connect the accused with the crime. I do not want to elaborate for the reason that, the matter requires further evidence to decide the issue correctly. If the accused is able to establish about his disability, it will be a matter that can be taken into consideration for the purpose of analysing the evidence of PW6, regarding the presence of the accused immediately before the seizure. Therefore, I set aside the conviction and sentence passed by the court below and remit the case back to the court below, with a direction to give an opportunity to the accused to produce documents in support of his disability and adduce evidence in support of the same and permit the prosecution, in case of necessity and if permitted u/s.311 of Cr.P.C., to explain that evidence that will be tendered by the accused. Thereafter the court below can reassess the evidence and dispose of the matter in accordance with law. The accused is directed to appear before the court below on 20.8.09 and he should be 4 CRL.A.No.1059 OF 2003 released on bail, till a final decision is taken in the matter. Appeal disposed of accordingly. M.N.KRISHNAN, JUDGE ami.