IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 6TH SEPTEMBER 2010 / 15TH BHADRA 1932 CRL.A.No. 1890 of 2008() ------------------------ SC.220/2006 of ADDL.SESSIONS JUDGE (NDPS ACT CASES), THODUPUZHA .................... APPELLANT(S): ACCUSED NO.1,3 AND 4: ----------------------------------- 1. SHAJI, S/O.DEVASYA, MAYATHUPARAMBIL (H) SOWRNAKKUZHI BHAGAM, PONNAMKANDI KARA, PARATHODU VILLAGE. 2. VARGHESE, S/O.MATHAI, PLAMOOTTIL (H) SOWRNAKKUZHI BHAGAM, PONNAMKANDI KARA, PARATHODU VILLAGE. 3. VANARAJ, S/O.RAJENDRAN, PUTHEN VEEDU, SOWRNAKKUZHI BHAGAM, PONNAMKANDI KARA, PARATHODU VILLAGE. BY ADV. SRI.V.V.RAJA SRI.M.T.SURESHKUMAR RESPONDENT(S): COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.R.VENUGOPAL. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 06/09/2010, ALONG WITH CRL.A.NO.592/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ---------------------------------------------- Crl.Appeal Nos. 1890/08 & 592/2010 ---------------------------------------------- Dated 6th September, 2010. J U D G M E N T The appellants are accused nos.1, 3 and 4 against whom, charge-sheet was laid by police for offences under Sections 55(a), (g) and 8(1) and (2) of Abkari Act. They were convicted and sentenced under the above said Sections to undergo rigorous imprisonment for four years each and to pay fine of Rs.One lakh each. On default of payment of fine, they were sentenced to undergo rigorous imprisonment for one year each. The said conviction and sentence are challenged in this appeal. (Accused nos.3 and 4 are still in jail). 2. According to prosecution, on 10.12.2004 in the evening, PW3, the Sub Inspector, along with police party were on patrol duty and he received reliable information that arrack was being manufactured and hence, he proceeded to the place of occurrence at about 4.30 p.m. The police party reached the scene which is in a cardamom estate, and they saw accused nos.1 to 4 engaged in manufacture of arrack. 5 litres of arrack and 1500 litres of wash were seized from the scene under a mahazar. Arrack was found in MO1, can. Wash was seen in 4 jars having a CRA NOS.1890/08 & 592/10 2 capacity of 200 litres, 5 jars having a capacity of 100 litres, and 1 iron barrel having capacity of 200 litres. Samples were drawn from the arrack in two bottles and samples of wash were also taken in two bottles. The utensils found at the scene, which were used for manufacturing liquor were also seized. The accused was arrested from the spot. The mahazar Ext.P1 was prepared at the scene. 3. The court framed charge against appellants under Sections 55(a) and (g) and 8(1) and (2) of Abkari Act. As per the details in the charge, accused were found in possession of 1000 litres of wash and other utensils used for manufacturing liquor and also 5 litres of arrack for the purpose of sale, on 10.12.2004 at about 4.30 p.m. (The accused was not charge-sheeted for manufacturing liquor). 4. To prove the prosecution case, PWs. 1 to 4, Ext.P1 to P9, MOs 1 to 12 and Exts.D1 and D2 series were marked. On an analysis of the evidence adduced, learned Additional Sessions Judge found that the prosecution established that accused were engaged in manufacturing arrack and they were in possession of the implements for manufacturing arrack and that wash was also CRA NOS.1890/08 & 592/10 3 prepared for it. The lower court held that 3 litres of arrack were found in possession of the accused and the accused were convicted for all the offences, for which they were charge- sheeted. 5. The accused were questioned under section 313 Cr.P.C., after the close of the evidence. The accused came forward with a specific case that this is a falsely foisted case since police had specific motive to do so. The first accused gave a detailed statement as follows : First accused and PW2's brother, Kunjumon were neighbours and there was property dispute between them. Pursuant to such dispute, first accused had assaulted the said Kunjumon and he was admitted in the Taluk Headquarters Hospital. 6. The first accused also contended that a complaint was lodged against first accused before the Nedumkandom Police Station in respect of the said incident. The police insisted that the first accused should appear at the Police Station. Three times, different Police Constables were sent to him, but the accused did not go to the police station, since he was afraid that he would be subjected to third degree method at the police station, under the CRA NOS.1890/08 & 592/10 4 influence of Joy, who was the Block President and an active worker of Congress party, who was also the brother of Kunjumon. 7. According to first accused, on 10.12.2004, while first accused and thee workers were working in the plantation, three police officials from the Nedumkandom police station came to the place in mufti and they tried to forcibly remove him from the place. Following this, there was an altercation between accused and the police. All of them were taken to the police station by force under the influence of PW2's brother Joy. Another complaint was also lodged against them alleging that they had manhandled the police etc. and charge was also laid. This case was also falsely charge sheeted. 8. The court below found that the evidence of PW1 and PW2, who are the independent witnesses are believable and that their evidence is not discredited in cross-examination. According to the learned Additional Sessions Judge, some discrepancies were brought out “by confusing the witnesses and by asking some confusing questions”. It is also found that the evidence of independent witnesses corroborated the evidence of PW3, who is the detecting officer and the entire evidence shows that PW1 and CRA NOS.1890/08 & 592/10 5 PW2 were telling the truth. It is held that the accused were in possession of the contraband articles, a can containing arrack and also wash and other materials and implements used for manufacturing arrack and they were also engaged in manufacturing arrack. The lower court also held that 3 litres of arrack were in possession of accused and that wash was prepared for manufacture. The above findings are challenged by the appellants on various grounds. 9. Learned defence counsel, at the very outset, pointed out that two appeals are filed by accused nos.3 and 4 against the same judgment – one through him and another appeal as jail appeal. Hence, the jail appeal is not pressed. It is also submitted that accused nos.3 and 4 were asked to deposit a fine of Rs.50,000/- while suspending the sentence. Since they were not able to deposit the fine, they are in custody for about more than two years. The sentence is for a period of four years. 10. Learned counsel who was appointed as State Brief for hearing the jail appeal (filed by accused no.3 and 4) submitted that since the appeal is being argued on behalf of accused nos.3 and 4 by another counsel, who was engaged by the appellants CRA NOS.1890/08 & 592/10 6 personally, she may be allowed to withdraw, Crl.Appeal No.592/10. 11. Learned counsel for appellants submitted that the trial court relied upon only the chief examination of the witnesses and it did not consider any of the relevant materials brought out in cross examination. Relating to the evidence given by PW1 and PW2, it was submitted that they are close relatives, being the uncle and nephew. Their evidence is full of contradictions. PW2 deposed that when he reached the place of occurrence, the wash and arrack had already been destroyed. So, the evidence of PW3 cannot be said to have corroborated the evidence of independent witnesses. PW1 stated that Ext.P2 series, which are labels were signed by him, but it is brought out in cross examination that his signatures in Ext.P2 series are different from the signature in the summons. Therefore, his evidence is not believable, it is submitted. 12. It was also pointed out that there is a contradiction in the evidence of PW1 and PW2, regarding the direction, in which they were coming towards the place of occurrence. PWs.1 and 2 stated that they were coming back from Parathode, whereas the CRA NOS.1890/08 & 592/10 7 case diary contradictions, Exts.D1 and D2 will show that they had given a statement to the police that they were going to Parathode, when they happened to see the incident. It is also submitted that PW1 has no case in the chief examination that PWs.1 and 2 were going together. But, he deposed in cross examination that he went for work and was coming back from Parathode. In such circumstances, PWs.1 and 2 are unbelievable, especially since they are relatives and they were going together and they have no case how and why they happened to be together. 13. In this context, it is also submitted that the accused have a case that there was previous enmity for the brother of PW2 with the first accused and all these facts are admitted by PW1. It is also in the evidence of PW1 that PW2's brother Joy is politically influential and that first accused had bitten Kunjumon, and PW1 was making all efforts to see that a case is registered against first accused. It is also pointed out that while PW1 stated that the incident happened on the right side of the road, PW3 stated that it was on the left side. PW1 also stated that arrack was only in one jar and it was a blue one, but he had no such case CRA NOS.1890/08 & 592/10 8 before the police. 14. According to prosecution, huge quantity of wash and several jars were seen at the place of occurrence, but no inventory was prepared, as contemplated under Section 53 of the Kerala Abkari Act and the relevant provisions are not complied with, it is submitted. The articles were allegedly destroyed from the scene itself. PW2 gave evidence in chief examination, supporting the prosecution version but while examined in court, his case was that PWs.1 and 2 met at Nedumkandom and from there they went to Parathode. A case diary contradiction was brought out as Ext.D2, regarding the direction in which PW2 was proceeding. He also stated that the incident happened on the left side of the road, which is contradictory to the evidence given by PW1. 15. It is also submitted that PWs.1 and 2 stated that the place of occurrence can be seen from the road whereas, according to PW3, the police official, the scene of occurrence cannot be seen from the road. PW2 stated that they reached the place, after the police poured out the wash and arrack. He also stated that he did not see wash being poured off. Ext.P1 mahazar CRA NOS.1890/08 & 592/10 9 does not show that labels were affixed as S1 and S3 at the scene. Ext.P2 series are the labels which were allegedly affixed on the sample bottles, but, crime number of the case is mentioned in the labels. As per the evidence of PW3, the crime was registered only at the police station at 8.30 p.m. Therefore, it is not believable that Ext.P2 series were prepared at the scene and this itself will destroy the worth of the entire prosecution case, it is contended. 16. It is also submitted that except PW3, no other police official was examined. A reading of the judgment will show that none of the relevant aspects were considered by the court below while appreciating the evidence, it is argued. It is also submitted that the discrepancies and contradictions which were brought out in evidence were treated as not vital and the court below went wrong in doing so. Hence, the conviction and sentence may be set aside, it is submitted. 17. Learned Public Prosecutor submitted dthat the evidence of PWs.1 and 2 will clearly establish that arrest, manufacture of arrack, seizure and sampling. The mahazar also contains the signature of PWs.1, 2 and 3. The sample bottle also contains their signature. All the accused were arrested from the CRA NOS.1890/08 & 592/10 10 spot and there is nothing to discredit the evidence of PWs.1, 2 and 3. Though it is brought out from the cross examination of PW2 that the signature in Ext.P2 series and the summons are different, it is of no consequence because PW2 denied his signature in the summons. He admitted only his signature in Ext.P2 series. 18. It was also submitted by learned Public Prosecutor that PW3 clarified that the crime number was ascertained from the police station and it was written in the slip at the scene. Therefore, the discrepancies pointed out by defence counsel are not material to discard the evidence adduced by the prosecution, it is contended. Regarding the motive, it is submitted by learned Public Prosecutor that there is only a boundary dispute and it was settled also, as admitted by the accused. But, this motive is not sufficient to reject the evidence adduced by the prosecution through any of the witnesses, it is argued. 19. On hearing both sides and on a perusal of the evidence on record, I find that though the trial court found that the prosecution established that “manufacturing” of liquor was proved, there is no charge for “manufacturing” liquor, under CRA NOS.1890/08 & 592/10 11 Section 55(b) or Section 8(1) of the Abkari Act. In the charge framed by the court, the accused was not called upon to answer any allegation regarding manufacture of arrack. Therefore, accused cannot be found guilty for “manufacturing” arrack or liquor. What remains is only possession of wash, arrack and utensils which are used for manufacturing arrack. 20. To prove the possession of the contraband articles by the accused, Pws.1 to 3 were examined. PWs.1 and 2 are the independent witnesses and PW3 is the Sub Inspector, who is the sole official witness who was examined to prove the occurrence. Before analysing the evidence, it is beneficial to keep in mind what the accused has to speak about the circumstances under which the case was registered. According to the accused, this is a falsely foisted case. The first accused and PW2's brother Kunjumon, who is also the uncle of PW1 was having a property dispute with first accused. Consequent to this, first accused assaulted Kunjumon and the latter got admitted in the hospital and he gave a complaint against first accused. 21. The first accused also contended that the police wanted him to go to the police station and thrice, Police CRA NOS.1890/08 & 592/10 12 Constables were sent to him, but he refused to go. This was due to the reason that he was afraid that Joy, who is is politically influential and he is the Block President and an active worker of the UDF. He would influence the police and under his influence, police may man-handle him at the police station, he apprehended. The said Joy is the uncle of PW1, an eye witness. He is also the brother of PW2 and Kunjumon, who is on inimical terms with first accused. The police went to his estate while he was engaged in work there along with his workers. Three police constables went there and tried to physically remove 1st accused by force. 22. According to first accused, there was a quarrel between the police officials and the workers and all the four persons were taken to the police station by force. According to the accused, a false case was filed thereafter, against the accused without any basis. No seizure or search was conducted at the scene, The witnesses PWs.1 and 2 were obliging the police at the instance of Kunjumon and his brother Joy. Admittedly, both PWs.1 and 2, the independent eye witnesses are closely related to Kunjumon. But, according to accused, they were not present at CRA NOS.1890/08 & 592/10 13 the time when the accused were taken into custody on the alleged date of occurrence. 23. PWs.1 and 2 are independent witnesses. PW1 admitted in cross examination that PW2 is his uncle and that Kunjumon is the elder brother of PW2. He also admitted that Joy was a UDF worker and in 2004, and at that time, the Government was ruled by UDF. It is also admitted that the property of first accused and Kunjumon were situated close to each other and first accused and Kunjumon had some dispute with respect to the boundary. Consequent to such dispute, first accused had bitten Kunjumon and a case was also registered against him. PW2 also admitted that himself and Joy had taken best efforts to get a case registered against accused in respect of the said incident. A suggestion was made that the case was compromised between first accused and Kunjumon without getting permission from PW1, Joy etc. and this was not to the liking. These suggestions were denied. However, PW1 admitted that the incident happened prior to the registration of the case. 24. But, PW2, who is none other than the own brother of Kunjumon pretended ignorance of any of the above facts. He CRA NOS.1890/08 & 592/10 14 stated that he did not know whether his brother Kunjumon had any property dispute with first accused and whether any police case was registered in respect of any incident as an off-shoot of the property dispute. PWs.1 and 2 are examined to prove that the manufacture of arrack was going on at the scene of occurrence and that the accused were engaged in manufacture of arrack. The evidence of PW1 and PW2 who are the independent witnesses are to be evaluated in the light of what is discussed above. 25. It is clear from evidence that PW1 and PW2 are close relatives and they are not residing close to the place of occurrence. But, in the chief examination, PW2 did not say anything to connect the accused with possession or manufacture of liquor. In fact, he did not implicate any one of the accused with the offence. He had no case that any one of the accused was found either manufacturing liquor or keeping the contraband articles in their possession. He also did not identify any of the accused while he was examined in court. Therefore, the evidence of PW1 will not disclose that the accused was in possession of the contraband articles or was manufacturing arrack using wash, as CRA NOS.1890/08 & 592/10 15 alleged by the prosecution. 26. As per the prosecution case, PWs.1 and 2 were proceeding together to the scene in the same direction and they happened to be in the scene together. But the evidence of PW2 shows that before they reached the place of occurrence, wash and arrack were already poured off. He also stated that he did not see pouring of the arrack and wash, but such information was conveyed to him. That means, going by the evidence of PW1, everything was over before PW1 and PW2 reached the spot. 27. PW2 also stated that he did not know, from which article, the sample was taken. He also stated that he did not know whether the article which was in possession of “police” was the article taken as sample or not. He did not know how much is the quantity of arrack, which was available at the scene. He repeatedly asserted that though wash wash poured off, it was not in his presence. He was confronted with his earlier statements given by him to police, which is Exts.D2(a) and D2(b), as per which he had seen the articles kept at the scene etc., but he bluntly denied having made any such statement to the police. Therefore, going by the evidence of PW2, neither PW1 nor PW2 CRA NOS.1890/08 & 592/10 16 would have seen what transpired at the place of occurrence. There was little chance for either of them to see the contraband articles being kept at the scene or being in possession of the accused, when they reached the place. 28. It is pertinent to note that PW2 is not a hostile witness. He is the star witness, who is owned by the prosecution. He is the person, on whose evidence the court convicted the accused. But, the lower court failed to take note of the fact that even in the chief examination of PW2, he was conspicuously silent about the material aspects to connect or incriminate the accused with the offence. If the evidence of PW2 is to be relief upon, the evidence of PW1 on the material aspects cannot be relied upon, since those are mutually contradictory. 29. There are also material discrepancies in the evidence of PW1, the other alleged eye witness, regarding the nature of articles seized from the place of occurrence. According to prosecution and the evidence of PW3, the official witness, arrack was found in a “can”. In his evidence, he made a distinction between “jar” and “can”. A reading of his evidence reveals that wash was allegedly present in the “jar”, whereas CRA NOS.1890/08 & 592/10 17 arrack was present in the “can”. But, the evidence of PW1, the alleged eye witness will show that he found arrack in a “jar” and according to him, the colour of the “jar” was blue. PW3, the detecting officer has no case that arrack was found either in the blue jar or in a jar of any colour. Therefore, the evidence of PW1 cannot be said to have corroborated the evidence of PW3 or the prosecution regarding the container in which the arrack was kept in possession by accused. 30. It is also seen from the evidence of PW1 that the relevant aspects regarding the presence of the jars, cans, contraband articles etc. are denied by him, while portions of the case diary statement were put to him and those are marked as Exts.D1(a) to D1(c). In the light of all the above facts and circumstances, the evidence of PW1 and PW2 cannot be accepted to hold that arrack or wash was seized from the possession of the accused, as alleged by the prosecution. Of course, PW1 stated that accused were found manufacturing arrack when they reached the place. 31. But, the evidence of PW2, another eye witness, who deposed that both PWs.1 and 2 went to the place together CRA NOS.1890/08 & 592/10 18 gave a totally contradictory version. According to PW2, no manufacture was going on at the scene. Neither the arrack or wash was seen by him at the scene. He had also not seen those articles being poured off. In such circumstances, the court ought not to have accepted the evidence of PW1 or PW2. The court cannot conveniently rely upon the evidence of PW1, which supports the prosecution and reject the other, which is against prosecution. This is specially since, prosecution has not sought to declare PW2 as hostile. The prosecution owns the evidence of PW1 and PW2, which are mutually contradictory. 32. Now, the evidence of PW3 can be looked into. PW3 is the detecting officer. His evidence also does not inspire the confidence of the court to conclude that the contraband articles were seized, as alleged by the prosecution. The evidence of PW3 shows that there were 4+5 “jars” and an iron drum at the scene in which wash was kept. He also stated that he had tested the article, which was present in the “jar”, by taste and smell in the presence of PWs.1 and 2. According to him, the “jar” contained arrack. He has not given evidence as to what was the article which was present in the “can”. Therefore, based on the evidence CRA NOS.1890/08 & 592/10 19 of PW3 or PW1 and PW2, it cannot be said that the “can” contained arrack. 33. There are also material contradictions in the evidence of PWs.1 to 3 in respect of the place of occurrence. PWs.1 and 2 stated that they were proceeding in the same direction on the road, which was lying east-west, but, PW1 would say that the place of occurrence lies on the right side, that is, on the